Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor shall remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (New York & Company, Inc.), Loan and Security Agreement (New York & Company, Inc.)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Loan Party shall at all times maintain inventory records reasonably satisfactory to Agentrecords, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of Inventory and such Borrower’s or Guarantor’s Inventory, such Borrower’s or GuarantorLoan Party’s cost therefor and daily withdrawals therefrom and additions theretotherefor; (b) each Borrower and Guarantor Loan Parties shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, in accordance with the Loan Parties’ historical practice in effect on the Closing Date but at any time or times as Agent may request on or after upon the occurrence and during the continuation of an Event of DefaultDefault or a Cash Dominion Event, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Loan Parties shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor Loan Party which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one four (14) time times in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense upon the occurrence and during the continuation of an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; provided that if no Event of Default has occurred and is continuing, Excess Liquidity is at least $100,000,000 and Total Excess Availability is greater than the Threshold Amount, the Borrowers shall be required to bear the cost of only two (e2) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time such appraisals in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (fe) each Borrower and Guarantor Loan Parties shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor Loan Party assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor Loan Parties shall keep the Inventory in good and marketable conditioncondition (other than Inventory that is old or obsolete or that the Loan Parties no longer intend to sell in the ordinary course of business); and (ki) no Borrower or Guarantor shallLoan Parties shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such the Administrative Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (Louisiana-Pacific Corp), Loan and Security Agreement (Louisiana-Pacific Corp)
Inventory Covenants. With respect to the Inventory: (a) each All sales of Inventory will be made in compliance with all requirements of Applicable Law.
(b) Each Borrower shall notify the Agent in writing promptly upon, but in no event later than three (3) Business Days after, learning of any Eligible Inventory with a value in excess of $250,000 that becomes, or such Borrower believes will become, ineligible, and Guarantor of the cause of such ineligibility, except for any such circumstance occurring in the ordinary course of business which has been appropriately reserved against, as reflected in financial statements previously delivered to the Agent and the Lenders pursuant to Section 6.1(m) or Article 10.
(c) No Borrower shall consign Inventory to any Person except as disclosed in the Schedule of Inventory delivered immediately after such consignment.
(d) Each Borrower shall permit the Agent or an agent or representative thereof, to conduct appraisals of the Inventory at the cost and expense of the Borrowers at such times as Agent determines to be necessary in its discretion.
(e) Each Borrower shall maintain a perpetual method of Inventory control and will at all times maintain inventory records reasonably satisfactory to Agent, keeping correct keep complete and accurate records of Inventory on a basis consistent with past practices of such Borrower, itemizing and describing the kind, type, quality type and quantity of Inventory and such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost 's Cost therefor and daily withdrawals therefrom and additions thereto; a current price list for such Inventory.
(bf) each Each Borrower and Guarantor shall conduct will take a physical count of its Inventory either through periodic cycle counts or wall to wall countsInventory, so that all Inventory is subject to such counts wherever located, at least once each year, but at any time or times as Agent may request on or after an Event of Default, annually and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor shall remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, reconcile the results of which such physical Inventory counts to each Borrower's Inventory records; provided, that, if the Borrowers take regular cycle counts supervised by the Borrowers' internal audit function and such counts are relied upon by the Borrowers' external auditors, then the Borrowers will not be required to perform physical counts.. Upon the request of the Agent, each Borrower shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records Agent, copies of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards results of any insurance physical Inventory count showing in reasonable detail the locations of and in conformity with applicable laws (including values for specific items of Inventory and such other information and supporting documents regarding Inventory that the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.deems necessary
Appears in 2 contracts
Samples: Loan and Security Agreement (Tropical Sportswear International Corp), Loan and Security Agreement (Tropical Sportswear International Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentAgent in substantially the same manner as being maintained on the date hereof (subject, however, to the terms of clause (o) of the definition of Eligible Inventory), keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, Inventory and such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions theretotherefor; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory no less frequently than is subject to such counts at least once each yearconsistent with the past practices of Borrowers and Guarantors, but at any time or times as Agent may request on or after upon the occurrence and during the continuance of an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall shall, promptly upon Agent’s request, supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer or distributor thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, the expense of Agent or at any time or times as Agent may reasonably request at Borrowers’ the expense of Borrowers upon the occurrence and during the continuance of an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; , (ih) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory Inventory, except for the right of return given to retail customers of any such Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerBorrower or Guarantor; (ji) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallBorrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Administrative Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (Travelcenters of America LLC), Loan and Security Agreement (Travelcenters of America LLC)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and each Guarantor shall at all times maintain inventory records reasonably satisfactory to Administrative and Collateral Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or such Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each yearyear (which may be done by way of a cycle count), but at any time or times as Administrative and Collateral Agent may reasonably request on or after during the existence of an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Administrative and Collateral Agent with a report in the form and with such specificity as may be reasonably satisfactory to Administrative and Collateral Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Administrative and Collateral Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or such Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Administrative and Collateral Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Administrative and Collateral Agent may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Administrative and Collateral Agent a full written reports or appraisals appraisal as to the Inventory in form, scope and methodology reasonably acceptable to Administrative and Collateral Agent and by an appraiser acceptable to Administrative and Collateral Agent, addressed to Administrative and Collateral Agent and Lenders and upon which Administrative and Collateral Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) Borrowers and Guarantors will hold Agents and each Borrower Lender harmless from and Guarantor assumes indemnify each of them with respect to all responsibility and liability arising from or relating to the production, use, sale or other disposition of the InventoryInventory unless such liability arises from the gross negligence or willful misconduct of such Agent or Lender; (ih) no Borrower except as disclosed to Administrative and Collateral Agent in writing or Guarantor to the extent accounted for in the determination of the Net Orderly Liquidation Value, Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or any Guarantor to repurchase such Inventory except for the right of return given to retail customers of any (excluding customary warranty terms and returns accepted by such Borrower or such Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrowerbusiness); (ji) each Borrower and Guarantor Borrowers shall keep the Eligible Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallBorrowers and Guarantors shall not, without prior written notice to Administrative and Collateral Agent or the specific identification of such Inventory in a report with respect thereto provided by such Administrative Borrower or Guarantor to Administrative and Collateral Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (BlueLinx Holdings Inc.), Loan and Security Agreement (BlueLinx Holdings Inc.)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors (other than Sumco and H&H Electronic) shall conduct a physical count of its their Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, H&H Electronic shall conduct a physical count of their Inventory at least once each month, but (in any case) at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records[intentionally omitted]; (f) each Borrower Borrowers and Guarantor Guarantors shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (j) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shallBorrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Administrative Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (Handy & Harman Ltd.), Loan and Security Agreement (WHX Corp)
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor shall at all times maintain and provide Lender with inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality quality, age and quantity of such Borrower’s or Guarantor’s Inventory, such the amount of open box Inventory, the amount of Eligible Inventory and Inventory that is not Eligible Inventory, Borrower’s or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; ;
(b) each Borrower and Guarantor shall cause a third party firm acceptable to Lender to conduct a complete physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least a minimum of once each yearevery twelve (12) months, but at any time or times as Agent Lender may request on or after upon the occurrence of an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) count, such firm shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; ;
(c) no Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s 's business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; location;
(d) upon Agent’s Lender's request, Borrowers and Guarantors Borrower shall, at their its expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during upon the occurrence of an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; rely (with the understanding that Lender may revise the definition of "Eligible Inventory" hereunder or establish Availability Reserves as Lender may deem advisable in its sole discretion based upon the results of such update appraisals);
(e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); ;
(gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; ;
(ig) no Borrower or Guarantor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Inventory;
(h) Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and and
(ki) no Borrower or Guarantor shallshall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (Wareforce Com Inc), Loan and Security Agreement (Wareforce Com Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Loan Party shall at all times maintain inventory records reasonably satisfactory to Agentrecords, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of Inventory and such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s Loan Party's cost therefor and daily withdrawals therefrom and additions theretotherefor; (b) each Borrower and Guarantor Loan Parties shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, in accordance with the Loan Parties' historical practice in effect on the Closing Date but at any time or times as Agent may request on or after upon the occurrence and during the continuation of an Event of DefaultDefault or a Cash Dominion Event, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Loan Parties shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor Loan Party which is in transit to the locations set forth or permitted herein; (d) upon Agent’s 's request, Borrowers and Guarantors shall, at their expense, no more than one three (13) time times in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense upon the occurrence and during the continuation of an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; provided (i) that if no Event of Default has occurred and is continuing and Excess Liquidity is greater than $100,000,000, the Borrowers shall be required to bear the cost of only one such field examination and one such appraisal in any 12 month period; (ii) that if no Event of Default has occurred and is continuing and Excess Liquidity is less than $100,000,000 or if Total Excess Availability is less than fifty percent (50%) of the Maximum Credit but equal to or greater than twenty-five percent (25%) of the Maximum Credit, the Borrowers shall be required to bear the cost of only two such field examinations and two such appraisals in any 12 month period and (iii) that if no Event of Default has occurred and is continuing and if Total Excess Availability is less than twenty-five percent (25%) of the Maximum Credit, the Borrowers shall be required to bear the cost of only three such field examinations and three such appraisals in any 12 month period; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor Loan Parties shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor Loan Party assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor Loan Parties shall keep the Inventory in good and marketable conditioncondition (other than Inventory that is old or obsolete or that the Loan Parties no longer intend to sell in the ordinary course of business); and (ki) no Borrower or Guarantor shallLoan Parties shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such the Administrative Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement, Loan and Security Agreement (Louisiana-Pacific Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing none of the kind, type, quality and quantity of such Borrower’s Borrowers or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Guarantors shall remove any Inventory with a fair market value in excess of $1,000,000 in the aggregate for all such Inventory of the Borrowers or Guarantors from the locations set forth or permitted herein, without the prior written consent of notice to Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such a Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (fb) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gc) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hd) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (je) each Borrower and Guarantor shall keep at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type and quantity of Inventory, such Borrower's or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (f) Borrowers and Guarantors shall conduct a physical count of the Inventory at least once each year but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory shall supply Agent, if requested by Agent, with a report in the form and with such specificity as may be satisfactory to Agent concerning such physical count; and (g) upon Agent's request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period (or two (2) times if the second such appraisal is commenced during a Cash Dominion Period), but at any time or times as Agent may request while an Event of Default is continuing, deliver or cause to be delivered to Agent written appraisals as to the Inventory in good form, scope and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice methodology acceptable to Agent or the specific identification of such Inventory in a report with respect thereto provided and by such Borrower or Guarantor an appraiser acceptable to Agent, addressed to Agent pursuant and Lenders and upon which Agent and Lenders are expressly permitted to Section 7.1(a) hereofrely; without limiting in any way the foregoing in this clause (g), acquire or accept Agent, at its expense, shall have the right to have such an appraiser, at any Inventory on consignment or approvaltime, perform such additional appraisals as to the Inventory.”
Appears in 1 contract
Samples: Loan and Security Agreement (Jazz Technologies, Inc.)
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower or Guarantor shall remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s 's business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent’s requeston or after an Event of Default, Borrowers and Guarantors each Borrower shall, at their its expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Periodrequest, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hf) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.Inventory;
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s 's or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent Lender may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s Lender's request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period (provided, that if the aggregate amount of the component of the Borrowing Base based on Eligible Inventory at any time exceeds $5,000,000, two (2) times in any twelve (12) month period), but at any time or times as Agent Lender may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent Lender and upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (ji) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallBorrowers and Guarantors shall not, without prior written notice to Agent Lender or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor Agent to Agent Lender pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor Borrowers shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s Borrowers' cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Borrowers shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower or Guarantor Borrowers shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s Borrowers' business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent’s Lender's request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes Borrowers assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor Borrowers shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor Borrowers to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (jh) each Borrower and Guarantor Borrowers shall keep the Inventory in good and marketable condition; and and
(ki) no Borrower or Guarantor shallBorrowers shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower shall, and Guarantor Parent shall cause each Obligor and L/C Debtor to, at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality quality, location and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s 's or Guarantor’s Obligor's or L/C Debtor's cost therefor therefor, the Retail Sales Price thereof (including markdowns with respect thereto) and daily withdrawals therefrom and additions theretothereto in accordance with such Borrower's or Obligor's or L/C Debtor's existing business practices; (b) each Borrower Borrower, Obligor and Guarantor L/C Debtor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no each Borrower or Guarantor shall remove not remove, and Parent shall cause each Retail Store Subsidiary and each other Obligor and L/C Debtor to not remove, any Inventory from the locations set forth or permitted hereinon Omnibus Schedule 2 hereto, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s business as permitted hereby and except to move Inventory directly from one location set forth or permitted herein to another any other such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent’s Lender's request, Borrowers and Guarantors Borrowers' Agent shall, at their its expense, no more than one (1) time three times in any twelve (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and Lender by an appraiser acceptable Gordon Brothers Partners, Inc. or by any othex xxxxxxxxx xxceptable to AgentLender, addressed to Agent and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no each Borrower or Guarantor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given with respect to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrowera customer which is a Retail Store Subsidiary; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no each Borrower or Guarantor shallshall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approvalapproval except with respect to sales of Inventory to Retail Store Subsidiaries. Borrowers shall not sell any Inventory to any Person other than to any other Borrower or to any Retail Store Subsidiaries or other Obligor without Lender's written consent, except, that, Borrowers may sell Inventory to a Person which is not a US Subsidiary (i) in an aggregate amount in any single transaction or related series of transactions of up to $10,000,000, provided, that, such Inventory is not sold for a sales price below fifty (50%) percent (but such percentage shall be increased to seventy-five (75%) percent if any of the Blocked Account Conditions exist and are continuing) of the cost for such Inventory, the purchase price therefor is due and payable on or before delivery to the buyer thereof, written notice thereof is given to Lender pursuant to Section 7.1(c)(iii) hereof, and, if any of the Blocked Account Conditions exist, all proceeds of such sales of Inventory are immediately paid to Lender, and (ii) where Inventory has been acquired by Borrowers for the specific purpose of resale thereof to such Person, provided that, such Inventory is not sold for a sales price below one hundred (100%) percent of the cost for such Inventory, the entire purchase price therefor is due and payable on or before delivery to the buyer thereof, written notice thereof is given to Lender pursuant to Section 7.1(c)(iii) hereof and the entire proceeds of such sale are immediately paid to Lender. Upon delivery to or for the account of any Borrower, Parent or other Subsidiary of documents of title with respect to Inventory accompanying drafts under a letter of credit opened for the account of any of Borrowers or otherwise relating to Inventory, such documents of title shall be immediately delivered to and held by a customs broker or freight forwarder who has executed a bailment letter with respect thereto in favor of Lender, in form and substance satisfactory to Lender, or, if an Event of Default has occurred, as Lender otherwise directs. All inventory acquired pursuant to the Additional L/C Accommodations shall be owned by and title thereof shall only be in the name of Borrowers, until resold to a Retail Store Subsidiary and all bills of lading with respect to the importation of such inventory into the United States shall be delivered by an overnight courier service only to a customs broker who has executed a bailment letter with respect thereto in favor of Lender, in form and substance satisfactory to Lender. Borrowers shall not use any customs broker or freight forwarder for the importation of Inventory into the United States or any cargo consolidator or store any of their Eligible Inventory nor permit the Additional L/C Debtors to store any of their finished goods inventory outside the United States (other than such inventory which is in transit and covered by a bill of lading issued by a third party and fxxxxhed goods inventory for which the purchase price has not been paid to the manufacturer thereof located at the premises of such manufacturer) with any Person, except, with respect to each of the foregoing, for any such Person who has executed a bailment letter with respect thereto in favor of Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower shall, and shall cause each Guarantor shall to, at all times maintain inventory records reasonably satisfactory to Agent, keeping in all material respects correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s the cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower shall, and Guarantor shall cause each of the Guarantors to, conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to of such counts Borrower at least once each year, but at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or shall, nor shall it permit any Guarantor shall to, remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except (i) for sales of Inventory in the ordinary course of such Borrower’s 's or Guarantor’s business and except 's business, (ii) to move Inventory directly from one location of such Borrower or Guarantor set forth or permitted herein to another such location of such Borrower or Guarantor or any other Borrower or Guarantor (so long as a financing statement between Agent as secured party and such other Borrower or Guarantor, as debtor, covering such Inventory has previously been recorded in the appropriate governmental offices of the jurisdiction of such location), provided, that, in no event shall the Inventory and Equipment located in Mexico have an aggregate value in excess of $8,000,000 at any time, and (iii) except for Inventory shipped from the manufacturer thereof to such any Borrower or Guarantor or to any Borrower's or Guarantor's customer which is in transit from such manufacturer to the locations set forth or permitted hereinherein or to such customer; (d) upon Agent’s 's request, Borrowers shall, and shall cause the Guarantors shallto, at their expense, no more than one (1) time twice in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, on or at any time or times after an Event of Default and for so long as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Periodthe same is continuing, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent (provided that any appraiser appointed for such purpose and acceptable to Congress shall be deemed acceptable to Agent), addressed to Agent and Lenders, and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors each Borrower shall, at their expenseand shall cause each Guarantor to, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (if) no Borrower or shall, nor shall it permit any Guarantor shall to, sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory (except for the right of return given to retail of customers of any Borrower for Inventory which is defective or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrowernon-conforming); (jg) each Borrower and Guarantor shall keep the Inventory in good and marketable conditioncondition (other than obsolete Inventory); (h) each Borrower assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory, except for liabilities incurred by a Lender due to acts or omissions of such Lender which constitute gross negligence or wilful misconduct as determined pursuant to a final non-appealable order of a court of competent jurisdiction; and (ki) no Borrower or shall, nor shall it permit any Guarantor shallto, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofAgent, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Credit Agreement (Huffy Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentAgents, keeping correct and accurate records itemizing and reasonably describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor shall Guarantors shall, at their expense, conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but provided, that Borrowers and Guarantors shall conduct additional physical counts of Inventory as provided herein at any time or times as Agent Agents may request on or after request, such additional physical counts at such Agent’s expense unless an Event of DefaultDefault then exists, in which case at Borrowers’ and Guarantors’ expense, and promptly following all such physical inventory inventories (whether through periodic cycle counts or wall to wall counts) Borrowers shall supply Agent Agents with a report in the form and with such specificity as may be reasonably satisfactory to Agent Agents concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentAgents (which consent shall not be unreasonably withheld), except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinherein and except to return defective or non-conforming Inventory to the manufacturers or vendors thereof; (d) upon Agent’s Borrowers shall, and shall cause their Subsidiaries to, cooperate with any appraiser retained by Working Capital Agent in the conduct of appraisals of Inventory, such appraisals (i) to be conducted at such time or times as Working Capital Agent may request, Borrowers and Guarantors shall(ii)(x) to be conducted, at their Borrower’s expense, no more less than one two (12) time times in any twelve (12) month period, but unless Adjusted Excess Availability is less than the Specified Amount, then no less than three (3) times in such twelve (12) month period and (y) to be conducted, at any time or times as Agent may request at Working Capital Agent’s expense, or at any time or times as Agent may reasonably request expense unless an Event of Default then exists in which case at Borrowers’ expense during an Additional Appraisal/Field Exam Periodexpense, deliver or cause and (iii) to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to AgentAgents, addressed to Agent Agents and Lenders and upon which Agent Agents and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any such Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerBorrower or Guarantor; (ji) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallBorrowers and Guarantors shall not, without prior written notice to Working Capital Agent or the specific identification of such Inventory in a report with respect thereto provided by such Administrative Borrower or Guarantor to Working Capital Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor shall remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to relyrely as follows: (i) so long as Compliance Excess Availability is greater twenty (20%) percent of the Maximum Credit, no more than one (1) such written appraisal in any twelve (12) month period, (ii) if Compliance Excess Availability is at any time less than or equal to twenty (20%) percent of the Maximum Credit, no more than two (2) such written appraisals in any twelve (12) month period, and (iii) if a Default or an Event of Default exists or has occurred and is continuing, such number of written appraisals as Agent may request; provided, that, at any time or times as Agent may request, at Agent’s expense, Agent may arrange to have appraisals conducted as to the Inventory; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, deliver or cause to be delivered to Agent field examinations as to the Inventory in form, scope and methodology acceptable to Agent and by a field examiner acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely as follows: (i) so long as Compliance Excess Availability is greater twenty (20%) percent of the Maximum Credit, no more than one (1) such field examination in any twelve (12) month period, (ii) if Compliance Excess Availability is at any time less than or equal to twenty (20%) percent of the Maximum Credit, no more than two (2) such field examinations in any twelve (12) month period, and (iii) if a Default or an Event of Default exists or has occurred and is continuing, such number of field examinations as Agent may request; provided, that, at any time or times as Agent may request, at Agent’s expense, Agent may arrange to have field examinations conducted as to the Inventory; (f) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Washington Inventory Specialists, Inc. Service or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period existsAgent, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records, as follows: (i) so long as Compliance Excess Availability is greater twenty (20%) percent of the Maximum Credit, no more than one (1) such physical count in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, (ii) if Compliance Excess Availability is at any time less than or equal to twenty (20%) percent of the Maximum Credit, no more than two (2) such physical counts in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, and (iii) if a Default or an Event of Default exists or has occurred and is continuing, such number of physical counts as Agent may request; provided, that, at any time or times as Agent may request, at Agent’s expense, Agent may arrange to have written reports or appraisals conducted as to the Inventory; (fg) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gh) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hi) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ij) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (jk) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (kl) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (New York & Company, Inc.)
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and each Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, Borrower's or such Borrower’s or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Guarantors shall conduct cycle counts of the Inventory at least once each year which shall include counts of at least 85% of the Borrower's and Guarantors' Inventory; provided that Borrower and Guarantors shall conduct a physical count of its the ---- Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after the occurrence and during the continuance of an Event of Default, and promptly following such cycle count or physical inventory (whether through periodic cycle counts or wall to wall counts) count, as applicable, shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no except as expressly permitted under this Agreement, Borrower or Guarantor and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location (that is owned or covered by a Collateral Access Agreement) and except for Inventory shipped from the manufacturer thereof to such Borrower or such Guarantor which is in transit to the locations set forth or permitted hereinherein (that is owned or covered by a Collateral Access Agreement); (d) upon Agent’s 's request, Borrowers and Guarantors Borrower shall, at their its expense, no more than one (1) time in once during any twelve (12) month periodFiscal Year, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense after the occurrence and during the continuance of an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers Borrower and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all commercially reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.58
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records in all material respects itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its Inventory either through periodic cycle counts or wall to wall counts, so that all of the Inventory is subject to such counts at least once each yearcalendar quarter, but at any time or times as Agent may request on at any time a Default or after an Event of DefaultDefault exists or has occurred and is continuing, and promptly following each such physical inventory (whether through periodic cycle counts or wall to wall counts) count shall supply Agent Agent, with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, (i) at their expense, no more than one (1) time in any each consecutive twelve (12) month periodperiod so long as Covenant Excess Availability is greater than $18,000,000, but and (ii) at any time or and as many times as Agent requests, at Borrowers’ expense as Agent may request at Agent’s expense, if either (A) Default or at any time Event of Default shall exist or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Periodhave occurred and be continuing or (B) Covenant Excess Availability is equal to or less than $18,000,000, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and performed by an appraiser acceptable to Agent, in form, scope and methodology and containing assumptions and appraisal methods acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto), except where the failure to be in conformity therewith could not reasonably be expected to have a Material Adverse Effect; (gf) none of as between Agent and Lenders, on the Inventory or one hand, and Borrowers and Guarantors, on the other Collateral constitutes farm products or the proceeds thereof; (h) hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; Inventory (i) no but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor shall as to any third party); (g) as of the date hereof, Borrowers and Guarantors do not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory (except for returns of defective or damaged Inventory for repair or replacement consistent with Borrowers’ policies in effect on the right of return given date hereof ) but shall give Agent prior written notice if such practice changes together with such information with respect to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return new policy of such Borroweras may reasonably be requested by Agent; (jh) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and (ki) no Borrower Borrowers and Guarantors shall not acquire or Guarantor shall, without prior written notice to Agent accept any Inventory on consignment or the specific identification of approval unless such Inventory has been specifically identified in a report with respect thereto provided by such Administrative Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire hereof when required to be included in such report or accept any Inventory on consignment or approvalAgent has otherwise received prior written notice thereof in form and substance reasonably satisfactory to Agent.
Appears in 1 contract
Samples: Loan and Security Agreement (Nu Horizons Electronics Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after at any time an Event of DefaultDefault exists or has occurred and is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; , provided, that, Agent shall not request an appraisal more than: (ei) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and period at a time to coincide with Borrowers’ and or Guarantors’ physical count the expense of the Inventory, Borrowers so long as no Excess Availability Compliance Period existsis more than the greater of (A) twenty (20%) percent of the lesser of the Borrowing Base or the Maximum Credit or (B) $100,000,000, (ii) two (2) times in any twelve (12) month period at the results expense of which shall be reported directly by Borrowers if at any time Excess Availability is less than the applicable amount specified in clause (d)(i) but greater than the Excess Availability Threshold, and (iii) three (3) times in any twelve (12) month period at the expense of Borrowers if at any time Excess Availability is less than the Excess Availability Threshold and Agent may require such inventory counting service to other appraisals at the cost and expense of Borrowers if a Default or Event of Default exists or any time at the expense of Agent and Lenders; (e) Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hf) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any such Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerBorrower or Guarantor; (jh) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and (ki) no Borrower Borrowers and Guarantors shall not acquire or Guarantor shall, without prior written notice to Agent accept any Inventory on consignment or the specific identification of approval unless such Inventory has been specifically identified in a report with respect thereto provided by such Administrative Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofhereof when required to be included in such report or Agent has otherwise received prior written notice thereof in form and substance satisfactory to Agent. Notwithstanding the foregoing, acquire unless an Event of Default shall exist or accept have occurred and be continuing, Agent will not conduct any Inventory appraisals at any time that the sum of outstanding Revolving Loans and Letters of Credit is less than the Qualified Cash of Borrowers then on consignment or approvalhand. Borrowers shall deliver such evidence of the amount of Qualified Cash in form and substance satisfactory to Agent from time to time promptly upon Agent’s request.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to the Collateral Monitoring Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s 's or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower the Borrowers and Guarantor Guarantors shall continue their current practices for conducting physical counts of Inventory in the distribution centers and the retail stores but shall also conduct a such physical count counts of its such Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as the Collateral Monitoring Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply the Collateral Monitoring Agent with a report in the form and with such specificity as may be reasonably satisfactory to the Collateral Monitoring Agent concerning such physical count; (c) no Borrower or Guarantor the Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted hereinin the Security Documents, without the prior written consent of the Collateral Monitoring Agent, except for sales or other dispositions of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon the Collateral Monitoring Agent’s 's request, the Borrowers and Guarantors shall, at their expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as the Collateral Monitoring Agent may request at Agent’s expense, on or after an Event of Default or at any time or times as Agent may reasonably request after the occurrence of a Trigger Date, and in any event at Borrowers’ any time at the expense during an Additional Appraisal/Field Exam Periodof the Lenders, deliver or cause to be delivered to the Collateral Monitoring Agent written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to the Collateral Monitoring Agent and by an appraiser acceptable to the Collateral Monitoring Agent, addressed to Agent the Agents and Lenders and upon which Agent the Agents and Lenders are expressly permitted to rely; (e) upon Agent’s request, the Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products (as defined in the UCC) or the proceeds thereof; (hg) each Borrower the Borrowers and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor Guarantors shall not sell Inventory to any customer on approval, or any other basis upon which entitles the customer has a right to return or may obligate such obligates any Borrower or Guarantor to repurchase such Inventory except for (it being acknowledged that this does not include discretionary decisions on the right of return given to retail customers of any Borrower or Guarantor in the ordinary course part of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower Borrowers and Guarantor shall keep the Inventory in good and marketable conditionGuarantors to repurchase Inventory); and (kh) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory Borrowers and Guarantors shall maintain current rent payments (within applicable grace periods contained in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(athe leases) hereof, acquire or accept any Inventory on consignment or approvalat all locations that contain Inventory.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Borrowers shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s Borrowers' cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Borrowers shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower or Guarantor Borrowers shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s Borrowers' business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such any Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s Lender's request, Borrowers and Guarantors shall, at their expense, no more than one (1) time once in any twelve (12) month periodperiod in which no Availability Triggering Event occurs or twice in any twelve (12) month period during which an Availability Triggering Event occurs or an Availability Compliance Period (related to an Availability Triggering Event or Compliance Triggering Event) exists, but at any time or times as Agent Lender may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent Lender and upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto, or any similar legislation applicable in Canada or any province or territory thereof); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes Borrowers assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor Borrowers shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (ji) each Borrower and Guarantor Borrowers shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallBorrowers shall not, without prior written notice to Agent Lender or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor Borrowers to Agent Lender pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Administrative Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; , it being acknowledged that the manner in which inventory records are maintained as of the Closing Date is satisfactory to Administrative Agent;
(b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Administrative Agent may request on or after during the continuance of an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Administrative Agent with a report in the form and with such specificity as may be reasonably satisfactory to Administrative Agent concerning such physical count; ;
(c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted hereinherein except (i) Inventory with a book value of up to $2,000,000 in the aggregate and (ii) Inventory with a book value in excess of $2,000,000 in the aggregate for all such Inventory, without provided that the applicable Borrower or Guarantor shall have given thirty (30) days prior written consent of notice to Administrative Agent, except for (iii) sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s business and except to move its business, (iv) movement of Inventory directly from one location set forth or permitted herein to another such location location, and except for (v) Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; ;
(d) upon Administrative Agent’s request, Borrowers and Guarantors shall, shall (i) at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Administrative Agent may request (A) on or after the occurrence of an Event of Default or (B) after Excess Availability falls below $10,000,000, and (ii) additionally, at Administrative Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam PeriodAdministrative Agent’s request, deliver or cause to be delivered to Administrative Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Administrative Agent and by an appraiser acceptable to Administrative Agent, addressed to Administrative Agent and Lenders and upon which Administrative Agent and Lenders are expressly permitted to rely; ;
(e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including including, to the extent applicable, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); ;
(gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; ;
(hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; ;
(ih) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; Inventory;
(ji) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and
(j) Borrowers and (k) no Borrower or Guarantor shallGuarantors shall not, without prior written notice to Administrative Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor Company to Administrative Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Collateral Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall-to-wall to wall counts, counts so that all Inventory is subject to covered by such counts at least once each year, but at any time or times as any Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through pursuant to periodic cycle counts or wall otherwise) shall, to wall counts) shall the extent requested, supply Collateral Agent with a report in the form and with such specificity as may be reasonably satisfactory to Collateral Agent concerning such physical count; (c) no Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Collateral Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for or to return defective, returned or slow moving Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth relevant distribution center or permitted hereindirectly to the supplier for appropriate credit; (d) Borrower shall make all material payments required to be made under leases of premises at which Inventory is located when due, except as specifically reported to Collateral Agent pursuant to Section 7.1 above; (e) upon Collateral Agent’s request, Borrowers and Guarantors Borrower shall, at their its expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Collateral Agent may reasonably request at Borrowers’ expense during on or after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Collateral Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Collateral Agent and by an appraiser acceptable to Collateral Agent, addressed to Collateral Agent and upon which Collateral Agent and Lenders are is expressly permitted to rely; (ef) upon Collateral Agent’s request, Borrowers and Guarantors Borrower shall, at their its expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.inventory
Appears in 1 contract
Samples: Loan and Security Agreement (Ulta Salon, Cosmetics & Fragrance, Inc.)
Inventory Covenants. With respect to the Inventory: (a) consistent with its current practices, each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent may request on or after an Event of DefaultDefault has occurred and is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s its business or Guarantor’s business as otherwise expressly permitted herein and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shallshall deliver or cause to be delivered, at their expense, no not more than (i) one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals appraisal as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; rely (e) upon Agent’s requesteach such appraisal being referred to as an “Inventory Appraisal”), Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, period so long as no Event of Default shall have occurred and at a time be continuing and Excess Availability shall be greater than or equal to coincide with Borrowers’ and or Guarantors’ physical count the amount equal to thirty-five (35%) percent of the InventoryMaximum Credit, (ii) two (2) such Inventory Appraisals in any twelve (12) month-period, so long as no Event of Default shall have occurred and be continuing and Excess Availability Compliance Period exists, the results of which shall be reported directly by greater than or equal to the amount equal to twenty (20%) percent of the Maximum Credit but less than thirty-five (35%) percent of the Maximum Credit, and (iii) three (3) such inventory counting service Inventory Appraisals in any twelve (12) month-period, in the event that either Excess Availability shall be less than the amount equal to Agent twenty (20%) percent of the Maximum Credit or an Event of Default shall have occurred and be continuing; (e) Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any such Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy policies of such BorrowerBorrower or Guarantor; (ji) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, Borrowers and Guarantors may acquire or accept any Inventory on consignment or approvalapproval so long as such Inventory is specifically identified on a report provided or to be provided by Administrative Borrower to Agent pursuant to Section 7.1(a)(i)(B) hereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Latrobe Specialty Metals, Inc.)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent may request on or after upon the occurrence and during the continuance of an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one three (13) time times in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense upon the occurrence and during the continuance of an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for (other than the right return of return given to retail customers of any Borrower or Guarantor defective Inventory in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrowerbusiness); (ji) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; (j) Borrowers and (k) no Borrower or Guarantor shallGuarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Administrative Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval; (k) within sixty (60) days following the date hereof, Borrowers shall, at Lenders’ expense, deliver or cause to be delivered to Agent a written appraisal as to the Inventory consisting of raw materials in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lender and upon which Agent and Lenders are expressly permitted to rely; (l) each Borrower shall promptly notify Agent in writing if any supplier or other creditor of such Borrower imposes any retention of title provisions with respect to any supply arrangements with such Borrower; (m) notwithstanding anything to the contrary contained in this Agreement or the other Financing Agreements, UK Borrower does not and will not maintain or store any of its Inventory in the Dutch Warehouse at any time; and (n) no Affiliate of US Borrower maintains or stores, or will maintain or store, any inventory in the Dutch Warehouse except that Mackie Designs (Italy) S.p.A. may maintain or store inventory consisting of finished goods in the Dutch Warehouse so long such inventory of Mackie Designs (Italy) S.p.A. is packaged in a manner that makes such inventory separately identifiable from the inventory of US Borrower.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Borrowers shall at all times maintain inventory records consistent with the current practices of Borrowers as of the date hereof or as modified in any material respect after the date hereof in a manner reasonably satisfactory acceptable to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s Borrowers' cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Borrowers shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each fiscal year, but at any time or times as Agent may request on or after an Event of DefaultDefault exists or has occurred and so long as the same is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s 's business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for or Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinsuch location; (d) upon Agent’s 's request, Borrowers and Guarantors such Borrower shall, at their its expense, no more than one (1) time once in any twelve six (126) month period, but at any time or times as Agent may request at Agent’s 's expense, or at any time or times as Agent may reasonably request at Borrowers’ such Borrower's expense during on or after an Additional Appraisal/Field Exam PeriodEvent of Default exists or has occurred and so long as the same is continuing, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and or upon which Agent and Lenders are is expressly permitted to rely; (e) upon Agent’s 's request, Borrowers and Guarantors each Borrower shall, at their its expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default exists or has occurred and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period existsthe same is continuing, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors such Borrower shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors such Borrower to reconcile the inventory count to Borrowers’ and Guarantors’ such Borrower's inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (Edison Brothers Stores Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Borrowers shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s Borrowers' cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Borrowers shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower or Guarantor Borrowers shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s Borrowers' business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such a Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s Lender's request, Borrowers and Guarantors shall, at their expense, no more than one (1) time twice in any twelve (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent Lender and upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; with
(i) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shall, without prior written notice to Agent Lender or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent Lender pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Borrowers shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such a Borrower’s or Guarantor’s 's business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s 's request, Borrowers and Guarantors each Borrower shall, at their its expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hf) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor Borrowers shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance consistent with its current policies as of the then current return policy of such Borrowerdate hereof; (jh) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (ki) no Borrower or Guarantor shallBorrowers shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofAgent, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Inventory, Borrower’s or Guarantor’s Inventory, such Borrower’s or GuarantorMCE’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after while an Event of DefaultDefault exists, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower or Guarantor and MCE shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or GuarantorMCE’s business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon AgentBorrower shall, at its expense, at Lender’s request, Borrowers and Guarantors shall, at their expense, but no more than one (1) time once in any twelve three (123) month periodperiod if an Event of Default does not exist, but and at any time or times as Agent Lender may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Periodafter and while Event of Default exists, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor MCE shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes MCE assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor and MCE shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor MCE to repurchase such Inventory Inventory, except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of or unless such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory is not Eligible Inventory; (jh) each Borrower and Guarantor MCE shall keep the Inventory in good and marketable condition; and (ki) no Borrower or Guarantor shalland MCE shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s 's or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its Inventory the Inventory, either through periodic cycle counts or wall to wall counts, otherwise so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic pursuant to a cycle counts count or wall to wall countsotherwise) shall supply Agent with a report in the form and with such reasonable specificity as may be reasonably satisfactory to Agent concerning the results of such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s 's request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period (or if at any time the aggregate amount of the Excess Availability of Borrowers is less than $20,000,000, then two (2) times in any twelve (12) month period), but at any time or times as Agent may request at Agent’s expense, on or after an Event of Default or at any time or times as Agent may reasonably request at Borrowers’ its expense during an Additional Appraisal/Field Exam Period(for the account of Lenders), deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (ji) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallBorrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor Agent to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (Perry Ellis International Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Inventory, Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor therefore and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon AgentLender’s request, Borrowers and Guarantors Borrower shall, at their its expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent Lender and upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.;
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records in all material respects itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at their expense at least once each year, year but at any time or times as Agent may request on or after an Event of Default, and at any other time Agent may request at the expense of Agent and Lenders, and promptly following any such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor shall remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more not less than one two (12) time times in any period of twelve (12) month periodconsecutive calendar months, but at any time or times as Agent may request at Agent’s expense, on or at any time after an Event of Default or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Periodif Excess Availability is less than twenty (20%) percent of the Maximum Credit or Excess Availability calculated without regard to the Maximum Credit or the Inventory Loan Limit is less than $75,000,000, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in material conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor other than in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrowerrespect to any non-conforming goods; (ji) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable conditioncondition in all material respects; and (kj) no Borrower or Guarantor shallBorrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Administrative Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (Global Brass & Copper Holdings, Inc.)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Loan Party shall at all times maintain inventory records reasonably satisfactory to the Administrative Agent and the Documentation Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s Loan Party's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Loan Parties shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time the Administrative Agent or times as the Documentation Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply the Administrative Agent and the Documentation Agent with a report in the form and with such specificity as may be reasonably satisfactory to the Administrative Agent or the Documentation Agent concerning such physical count; (c) no Borrower or Guarantor the Loan Parties shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of the Administrative Agent and the Collateral Agent, except (i) for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s business and except its business, (ii) to move Inventory directly from one location set forth or permitted herein to another such location, (iii) for consignments of Inventory to a third party (or similar arrangements with respect to Inventory) with an aggregate Book Value of all such Inventory not at any time exceeding $2,000,000, (iv) to move Inventory to such other locations outside of the continental United States as the Loan Parties may elect, provided that, in the case of this clause (iv) (A) the book value of such Inventory (together with any other Inventory located outside of the continental United States, whether pursuant to consignment arrangements or otherwise) shall not exceed an aggregate amount equal to $15,000,000 at any time outstanding, and (B) such Inventory shall be moved to such other location in the ordinary course of business of such Loan Party, and except (v) for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor Loan Party which is in transit to the locations set forth or permitted herein; (d) upon the Administrative Agent’s 's or the Documentation Agent's request, the Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as the Administrative Agent or the Documentation Agent may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to the Administrative Agent and the Documentation Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to the Administrative Agent and the Documentation Agent and by an appraiser acceptable to the Administrative Agent and the Documentation Agent, addressed to Agent Agents and Lenders and upon which Agent Agents and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor Loan Parties shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor Loan Party assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor except as otherwise expressly permitted under clauses (c)(iii) and (c)(iv) above, the Loan Parties shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor any Loan Party to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (ji) each Borrower and Guarantor the Loan Parties shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallthe Loan Parties shall not, without prior written notice to the Administrative Agent and the Documentation Agent or the specific identification of such Inventory in a report with respect thereto provided by such the Administrative Borrower or Guarantor to the Administrative Agent and the Documentation Agent pursuant to Section 7.1(a9.03(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Financing Agreement (Solutia Inc)
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such each Borrower’s or Guarantor’s 's cost therefor and daily or weekly withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct (i) a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after an Event of Default, and (ii) test counts of inventory at any time or times as Lender may request utilizing a third party service therefore designated by Lender, and promptly following such physical inventory (whether through periodic cycle and test counts or wall to wall counts) of inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical countcount and test counts; (c) no Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent’s Lender's request, Borrowers and Guarantors Borrower shall, at their its expense, no more than one (1) time four times in any twelve (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes shall assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (jh) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; , and (ki) no Borrower or Guarantor shallshall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality type and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may in good faith be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except (i) for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s business and except its business, (ii) to move Inventory directly from one location set forth or permitted herein to another such location location, and except for (iii) Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, Borrower shall deliver or cause to be delivered to Agent delivered, at its expense (i) a written reports or appraisals appraisal as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; rely (e) upon Agent’s requesteach such appraisal being referred to as an “Inventory Appraisal”), Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time once in any twelve (12) month period, (ii) an Inventory Appraisal at any time or times as Agent may request on or after an Event of Default and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, for so long as no the same is continuing, and (iii) an Inventory Appraisal, at any time that Excess Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service less than the amount equal to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records$40,000,000; (fe) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory (except for the right of customers to return given to retail customers of any Borrower defective or Guarantor non-conforming goods in the ordinary course of the business of such Borrower or Guarantor in accordance consistent with the then current return policy practices of such BorrowerBorrower as of the date hereof); (jh) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (ki) no Borrower or Guarantor shallshall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall EXHIBIT 10.3 supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s 's business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent’s Lender's request, Borrowers and Guarantors Guarantor shall, at their its expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (jh) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (ki) no Borrower or Guarantor shallshall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Borrowers shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (ji) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallBorrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor Borrowers to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (Lighting Science Group Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall shall, at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall shall, conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted hereinSpecified Locations of Guarantor, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s 's business and except to move Inventory to or from the distribution center to any location, to vendors for return in the ordinary course of business or directly from one location set forth or permitted herein store to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinstore; (d) upon Agent’s Lender's request, Borrowers at any time that a Trigger Event has occurred and Guarantors is continuing, Guarantor shall, at their its expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Periodrequest, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory of Guarantor in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to Agentlender, addressed to Agent and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (eE) upon Agent’s request, Borrowers and Guarantors Guarantor shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor shall sell Inventory to any customer on approvalshall, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (ki) no Borrower or Guarantor shallshall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approvalapproval unless such Inventory is readily identifiable.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Borrowers shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s Borrowers' cost therefor and daily withdrawals therefrom and additions thereto; (bthereto;(b) each Borrower and Guarantor Borrowers shall conduct a physical periodic cycle count of its the Inventory either through periodic cycle counts or wall in a manner that is acceptable to wall countsBorrowers' independent certified public accountants, so that all Inventory is subject to such counts at least once each yearand, but at any time or times as Agent may request on or after an Event of Default, conduct a physical count of the Inventory, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (ccount;(c) no Borrower or Guarantor Borrowers shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s Borrowers' business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (dlocation;(d) upon at Agent’s 's request, Borrowers and Guarantors shall, at their expense, expense on no more than one two (12) time occasions in any twelve (12) month period, but at any time or times as Agent may request and at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ 's own expense on the third and all subsequent occasions during an Additional Appraisal/Field Exam Periodsuch period, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an Xxxxxxx, Xxxxxxxx & Associates, Inc. or another appraiser acceptable to Agent, addressed to Agent and or upon which Agent and Lenders are is expressly permitted to rely; rely (e) upon Agent’s requestthe "Inventory Appraisal"), Borrowers PROVIDED, THAT, from and Guarantors shallafter the occurrence and during the continuance of an Event of Default, at their expense, conduct through RGIS all Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Appraisals requested by Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent delivered at Borrowers' sole cost and expense;(e) Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gthereto);(f) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes Borrowers assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (iInventory;(g) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor Borrowers shall keep the Inventory in good and marketable condition; and (kh) no Borrower or Guarantor shallBorrowers shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofAgent, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (Damark International Inc)
Inventory Covenants. With respect to the Inventory: , (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) Borrowers shall conduct cycle counts of the Inventory throughout each Borrower and Guarantor year, but shall conduct a physical count of its Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such a Borrower’s or Guarantor’s business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors each Borrower shall, at their its expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, upon the occurrence or at any time or times as Agent may reasonably request at Borrowers’ expense during the existence of an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hf) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor Borrowers shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance consistent with its current policies as of the then current return policy of such Borrowerdate hereof; (jh) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (ki) no Borrower or Guarantor shallBorrowers shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofAgent, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Borrowers shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such each Borrower’s or Guarantor’s 's cost therefor and daily or weekly withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Borrowers shall conduct (i) a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after an Event of Default, and (ii) test counts of inventory at any time or times as Lender may request utilizing a third party service therefore designated by Lender, and promptly following such physical inventory (whether through periodic cycle and test counts or wall to wall counts) of inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical countcount and test counts; (c) no Borrower or Guarantor Borrowers shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such a Borrower’s or Guarantor’s business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent’s Lender's request, Borrowers and Guarantors shall, at their there expense, no more than one (1) time four times in any twelve (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes Borrowers shall assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor Borrowers shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such a Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (jh) each Borrower and Guarantor Borrowers shall keep the Inventory in good and marketable condition; , and (ki) no Borrower or Guarantor shallshall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor shall remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during on or after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Event of Default has occurred and is continuing, and no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (New York & Company, Inc.)
Inventory Covenants. With respect to the Inventory: Inventory (other than Inventory that is an Excluded Asset): (a) each Borrower and Guarantor Debtor shall at all times maintain inventory records reasonably satisfactory to Collateral Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s Debtor's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Debtor shall conduct a physical count of its such Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Collateral Agent may reasonably request (but not more than once per year) on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Collateral Agent with a report in the form and with such specificity as may be reasonably satisfactory to Collateral Agent concerning such physical count; (c) no Borrower or Guarantor Debtor shall remove any such Inventory from the locations set forth or permitted herein, without the prior written consent of Perfection Agent, except for sales and movement or transport of such Inventory in the ordinary course of such Borrower’s or Guarantor’s Debtor's business and except to move such Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor Debtor shall produce, use, store and maintain the such Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (he) each Borrower and Guarantor Debtor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the such Inventory; (if) no Borrower or Guarantor Debtor shall sell such Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor Debtor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor Inventory(other than in the ordinary course of the business of such Borrower or Guarantor in accordance consistent with the then current return policy of such Borrowerpast practices); (jg) each Borrower and Guarantor Debtor shall keep the such Inventory in good and marketable condition; and (kh) no Borrower or Guarantor Debtor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofCollateral Agent, acquire or accept any such Inventory on consignment or approvalapproval (other than in the ordinary course of business consistent with past practices).
Appears in 1 contract
Samples: Security Agreement (Block 7932 Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality quality, quantity and quantity aging of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor shall remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such a Borrower’s or Guarantor’s 's business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent’s 's request, Borrowers and Guarantors shall, at their its expense, no more than one (1) time two times in any twelve (12) month period, but at any time or times as Agent may request at Agent’s 's expense, or at any time or times as Agent may reasonably request at Borrowers’ ' expense during on or after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals or appraisal updates as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and upon which Agent and Lenders are is expressly permitted to rely; (e) upon Agent’s 's request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time once in any twelve (12) month period, and but at a any time to coincide with Borrowers’ and or Guarantors’ physical times as Agent may request on or after an Event of Default or at any time or times as Agent may request in the event of test count variances is in excess of 5% of the Cost of all Eligible Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.promptly
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Debtor shall at all times maintain inventory records reasonably satisfactory to US Collateral Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or GuarantorDebtor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Debtor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as US Collateral Agent may request on or after an while Event of DefaultDefault has occurred and is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply US Collateral Agent with a report in the form and with such specificity as may be reasonably satisfactory to US Collateral Agent concerning such physical countcounts; (c) no Borrower or Guarantor Debtor shall remove any Inventory from the locations set forth on the Information Certificate or otherwise permitted hereinherein or in the US Loan Agreement, without the prior written consent of US Collateral Agent, except for sales of Inventory in the ordinary course of such Borrower’s or GuarantorDebtor’s business or as provided in the US Loan Agreement and except to move Inventory (i) directly from one location set forth or permitted herein to another such location and except or (ii) to an outside processor for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinprocessing; (d) upon US Collateral Agent’s request, Borrowers and Guarantors each Debtor shall, at their its expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as US Collateral Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Periodwhile Event of Default has occurred and is continuing, deliver or cause to be delivered to US Collateral Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to US Collateral Agent and by an appraiser acceptable to US Collateral Agent, addressed to US Collateral Agent and or upon which US Collateral Agent and Lenders are is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor Debtor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hf) each Borrower and Guarantor Debtor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor Debtor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor any Debtor to repurchase such Inventory except for as may be otherwise permitted by the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerUS Loan Agreement; (jh) each Borrower and Guarantor Debtor shall keep the Inventory in good and marketable condition; and (ki) no Borrower or Guarantor Debtor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofUS Collateral Agent, acquire or accept any Inventory on consignment or approvalapproval except as may be permitted by the US Loan Agreement.
Appears in 1 contract
Samples: General Security Agreement (Mad Catz Interactive Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after at any time an Event of DefaultDefault exists or has occurred and is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely, but so long as no Default or Event of Default shall exist or have occurred, no more than two (2) such appraisals at the cost and expense of Borrowers in any calendar year; provided, that, without limiting any rights of Agent hereunder, Borrowers shall within ninety (90) days after the date hereof deliver, or cause to be delivered, to Agent, such written appraisals as to the Inventory; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hf) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any such Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerBorrower or Guarantor; (jh) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and (ki) no Borrower Borrowers and Guarantors shall not acquire or Guarantor shall, without prior written notice to Agent accept any Inventory on consignment or the specific identification of approval unless such Inventory has been specifically identified in a report with respect thereto provided by such Administrative Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire hereof when required to be included in such report or accept any Inventory on consignment or approvalAgent has otherwise received prior written notice thereof in form and substance satisfactory to Agent.
Appears in 1 contract
Inventory Covenants. With respect to the InventoryInventory of any Borrower Party that is included by the Borrower Representative as Eligible Inventory or Eligible Machinery-in-Process in the calculation of the Borrowing Base: (a) each such Borrower and Guarantor Party shall at all times maintain inventory records reasonably satisfactory to AgentAgent (it being acknowledged that Agent is not aware of any inventory records that are not reasonably satisfactory), keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or GuarantorBorrower Party’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each such Borrower and Guarantor Parties shall conduct a physical count of its such Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after an Event of Defaultreasonably request, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical countcount (it being acknowledged that Agent is not aware of any current practices that are not reasonably satisfactory); (c) no such Borrower or Guarantor Parties shall not remove any such Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of such Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move such Inventory directly from one location set forth or permitted herein to another such location and except for such Inventory shipped from the LEGAL_US_E # 82813718.8 manufacturer thereof to such Borrower or Guarantor Party which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors the Borrower Parties shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals as to the such Inventory in form, scope and methodology reasonably acceptable to Agent (and consistent with the methodology used by Continental Plants) by Continental Plants or an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor Parties shall produce, use, store and maintain the Inventory, such Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the such Inventory or other Collateral constitutes shall constitute farm products or the proceeds thereof; (hg) each such Borrower and Guarantor Party assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the such Inventory; (ih) no such Borrower or Guarantor Parties shall not sell such Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any such Borrower or Guarantor Party to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor (unless such Inventory may be returned only if it is not damaged and is resalable in the ordinary normal course of the business of business); (i) such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor Parties shall keep the such Inventory in good and marketable condition; and (kj) no such Borrower or Guarantor shallParties shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor Representative to Agent pursuant to Section 7.1(aparagraph (a) of Annex F hereof, acquire or accept any such Inventory on consignment or approvalapproval outside the ordinary course of business.
Appears in 1 contract
Samples: Senior Secured, Super Priority Debtor in Possession Credit Agreement (Milacron Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after during the continuance of an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s 's business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent’s Lender's request, Borrowers and Guarantors Guarantor shall, at their its expense, no more than one (1) time twice in any twelve (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during the continuance of an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shallshall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Borrowers shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after at any time an Event of DefaultDefault exists or has occurred and is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s Borrowers' business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s 's request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s 's expense, or at any time or times as Agent may reasonably request at Borrowers’ ' expense during at any time an Additional Appraisal/Field Exam PeriodEvent of Default exists or has occurred and is continuing, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s 's request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.counting
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after while an Event of DefaultDefault exists, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower or Guarantor shall not, and shall cause MCE and Saitek US not to, remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s, MCE’s or GuarantorSaitek US’s business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent’s request, Borrowers and Guarantors Borrower shall, at their its expense, at Lender’s request but, no more than one (1) time once in any twelve three (123) month periodperiod if an Event of Default does not exist, but and at any time or times as Agent Lender may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Periodafter and while Event of Default exists, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors Borrower shall, at their expenseand shall cause MCE and Saitek US to, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor shall not, and shall cause MCE and Saitek US not to, sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower Borrower, MCE or Guarantor Saitek US to repurchase such Inventory Inventory, except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of unless such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.is not Eligible Inventory;
Appears in 1 contract
Samples: First Amending Agreement (Mad Catz Interactive Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentBank, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Bank may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) count shall supply Agent Bank with a report in the form and with such specificity as may be reasonably satisfactory to Agent Bank concerning such physical count; (c) no Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentBank, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s 's business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent’s Bank's request, Borrowers and Guarantors Guarantor shall, at their its expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent Bank may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Bank written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Bank and by an appraiser acceptable to AgentBank, addressed to Agent and Bank or upon which Agent and Lenders are Bank is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (jh) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (ki) no Borrower or Guarantor shallshall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofBank, acquire or accept any Inventory on consignment or approval; and (j) upon the occurrence of an Event of Default, Guarantor shall not return any Inventory to its vendors without the prior written consent of Bank.
Appears in 1 contract
Samples: Guarantor Security Agreement (Elite Information Group Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to the Inventory Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s 's or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower the Borrowers and Guarantor Guarantors shall continue their current practices for conducting physical counts of Inventory in the distribution centers and the retail stores but shall also conduct a such physical count counts of its such Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as the Inventory Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply the Inventory Agent with a report in the form and with such specificity as may be reasonably satisfactory to the Inventory Agent concerning such physical count; (c) no Borrower or Guarantor the Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted hereinin the Security Documents, without the prior written consent of the Inventory Agent, except for sales or other dispositions of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon the Inventory Agent’s 's request, the Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as the Inventory Agent may request at Agent’s expense, on or after an Event of Default or at any time or times as Agent may reasonably request at Borrowers’ the expense during an Additional Appraisal/Field Exam Periodof the Lenders, deliver or cause to be delivered to the Inventory Agent written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to the Inventory Agent and by an appraiser acceptable to the Inventory Agent, addressed to Agent the Agents and Lenders and upon which Agent the Agents and Lenders are expressly permitted to rely; (e) upon Agent’s request, the Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products (as defined in the UCC) or the proceeds thereof; (hg) each Borrower the Borrowers and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor Guarantors shall not sell Inventory to any customer on approval, or any other basis upon which entitles the customer has a right to return or may obligate such obligates any Borrower or Guarantor to repurchase such Inventory except for (it being acknowledged that this does not include discretionary decisions on the right of return given to retail customers of any Borrower or Guarantor in the ordinary course part of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower Borrowers and Guarantor shall keep the Inventory in good and marketable conditionGuarantors to repurchase Inventory); and (kh) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory Borrowers and Guarantors shall maintain current rent payments (within applicable grace periods contained in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(athe leases) hereof, acquire or accept any Inventory on consignment or approvalat all locations that contain Inventory.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, counts so that all Inventory is subject to such counts at least once each year, year during the term hereof but at any time or times as Agent Lender may request on or after an Event of DefaultDefault and for so long as the same is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon AgentLender’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) consecutive month periodperiod (and two (2) times in the event that Excess Availability at any time shall be less than $15,000,000), but and at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense as Lender may request upon the occurrence and during the continuance of an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent Lender and upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (ji) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallBorrowers and Guarantors shall not, without prior written notice to Agent Lender or the specific identification of such Inventory in a report with respect thereto provided by such Administrative Borrower or Guarantor to Agent Lender pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor Borrowers shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s Borrowers' cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Borrowers shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower upon Lender's request, Borrowers shall, at Borrowers' expense, obtain an appraisal of the Inventory once a year, but at any time or Guarantor times as Lender may request on or after an Event of Default, from an appraiser acceptable to Lender and in form, scope and methodology acceptable to Lender, (d) Borrowers shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such a Borrower’s or Guarantor’s 's business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (de) upon Agent’s Lender's request, Borrowers and Guarantors shall, at their expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor Borrowers shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes Borrowers assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor Borrowers shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (ji) each Borrower and Guarantor Borrowers shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallBorrowers shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval, and (k) ACC shall, within 120 s of the date hereof, have installed and made fully operational a perpetual inventory system satisfactory to Lender.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) consistent with its current practices, each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agentthe Required Lenders, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent (acting at the direction of the Required Lenders) may request on or after an Event of DefaultDefault has occurred and is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent the Required Lenders concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agentthe Required Lenders, except for sales of Inventory in the ordinary course of such Borrower’s its business or Guarantor’s business as otherwise expressly permitted herein and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) (x) prior to the payment in full of the Revolving Obligations, Borrowers shall deliver to Agent copies of written appraisal as to the Inventory delivered to the Revolving Agent pursuant to the terms of the Revolving Credit Documents substantially simultaneously upon delivering such appraisal to the Revolving Agent and (y) on and after the payment in full of the Revolving Obligations, if an Event of Default has occurred and is continuing, upon Agent’s (acting at the direction of the Required Lenders) request, Borrowers and Guarantors shallshall deliver or cause to be delivered, at their expense, no not more than one two (12) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent the Required Lenders and by an appraiser reasonably acceptable to Agentthe Required Lenders, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; rely (e) upon Agent’s requesteach such appraisal being referred to as an “Inventory Appraisal”), Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and ; (e) Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any such Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy policies of such BorrowerBorrower or Guarantor; (ji) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, Borrowers and Guarantors may acquire or accept any Inventory on consignment or approvalapproval so long as such Inventory is specifically identified on a report provided or to be provided by Administrative Borrower to Agent pursuant to Section 7.1 hereof on and after the payment in full of the Revolving Obligations.
Appears in 1 contract
Samples: Loan and Security Agreement (Latrobe Specialty Metals, Inc.)
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s 's or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Borrowers shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s 's request, Borrowers and Guarantors shall, at their expense, no more than one four (14) time times in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor Borrowers shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (ji) each Borrower and Guarantor Borrowers shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallBorrowers shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Administrative Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (Sed International Holdings Inc)
Inventory Covenants. With respect to the ------------------- Inventory: :
(a) each Borrower and Guarantor Loan Party shall at all times maintain inventory records reasonably satisfactory to the Administrative Agent and the Documentation Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s Loan Party's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Loan Parties shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time the Administrative Agent or times as the Documentation Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply the Administrative Agent and the Documentation Agent with a report in the form and with such specificity as may be reasonably satisfactory to the Administrative Agent or the Documentation Agent concerning such physical count; (c) no Borrower or Guarantor Loan Parties shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of the Administrative Agent and the Collateral Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor Loan Party which is in transit to the locations set forth or permitted herein; (d) upon the Administrative Agent’s 's or the Documentation Agent's request, the Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as the Administrative Agent or the Documentation Agent may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to the Administrative Agent and the Documentation Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to the Administrative Agent and the Documentation Agent and by an appraiser acceptable to the Administrative Agent and the Documentation Agent, addressed to Agent Agents and Lenders and upon which Agent Agents and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor Loan Parties shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor Loan Party assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor the Loan Parties shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor any Loan Party to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (ji) each Borrower and Guarantor the Loan Parties shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallthe Loan Parties shall not, without prior written notice to the Administrative Agent and the Documentation Agent or the specific identification of such Inventory in a report with respect thereto provided by such the Administrative Borrower or Guarantor to the Administrative Agent and the Documentation Agent pursuant to Section 7.1(a8.03(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Financing Agreement (Solutia Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) Borrowers shall conduct cycle counts of the Inventory throughout each Borrower and Guarantor year, but shall conduct a physical count of its Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such a Borrower’s or Guarantor’s 's business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors each Borrower shall, at their its expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, upon the occurrence or at any time or times as Agent may reasonably request at Borrowers’ expense during the existence of an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hf) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor Borrowers shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance consistent with its current policies as of the then current return policy of such Borrowerdate hereof; (jh) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (ki) no Borrower or Guarantor shallBorrowers shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofAgent, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Eligible Inventory: (a) each Borrower and Guarantor the Borrowers shall at all times maintain inventory records reasonably satisfactory to the Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Eligible Inventory, such Borrower’s or Guarantor’s cost the Borrowers' costs therefor and daily monthly withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor the Borrowers shall conduct a physical count of its the Eligible Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each every fiscal year, but at any time or times as Agent the Lenders may request requests on or after an Event of DefaultDefault occurs and is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply the Agent with a report in the form and with such specificity as may be reasonably satisfactory to the Agent concerning such physical count; (c) no Borrower or Guarantor the Borrowers shall not remove any Eligible Inventory from the locations set forth or permitted herein, without the prior written consent of Agentthe Lenders, except for sales of Eligible Inventory in the ordinary course of such Borrower’s or Guarantor’s the Borrowers' business and except to move Eligible Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent’s request, the Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the monthly Eligible Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto)laws; (ge) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes Borrowers assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Eligible Inventory; (if) no Borrower or Guarantor the Borrowers shall not sell Eligible Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor the Borrowers to repurchase such Inventory except for Eligible Inventory; and (g) the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor Borrowers shall keep the Eligible Inventory in good and marketable condition. The Borrowers agree that, at the Borrowers' expense and upon request of the Lenders, a third party appraisal firm may be engaged to conduct an appraisal of the Borrower's Inventory. The Borrowers agree to cooperate with any such appraisal firm in connection therewith; and (k) no Borrower or Guarantor shallprovided, without prior written notice that such third party appraisal firm shall sign a confidentiality agreement reasonably acceptable to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approvalBorrowers.
Appears in 1 contract
Samples: Revolving Credit Agreement (Memc Electronic Materials Inc)
Inventory Covenants. With respect to the InventoryInventory of any Borrower Party that is included by the Borrower Representative as Eligible Inventory or Eligible Machinery-in-Process in the calculation of the Borrowing Base: (a) each such Borrower and Guarantor Party shall at all times maintain inventory records reasonably satisfactory to AgentAgent (it being acknowledged that Agent is not aware of any inventory records that are not reasonably satisfactory), keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or GuarantorBorrower Party’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each such Borrower and Guarantor Parties shall conduct a physical count of its such Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after an Event of Defaultreasonably request, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical countcount (it being acknowledged that Agent is not aware of any current practices that are not reasonably satisfactory); (c) no such Borrower or Guarantor Parties shall not remove any such Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of such Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move such Inventory directly from one location set forth or permitted herein to another such location and except for such Inventory shipped from the manufacturer thereof to such Borrower or Guarantor Party which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors the Borrower Parties shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals as to the such Inventory in form, scope and methodology reasonably acceptable to Agent (and consistent with the methodology used by Continental Plants) by Continental Plants or an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor Parties shall produce, use, store and maintain the Inventory, such Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the such Inventory or other Collateral constitutes shall constitute farm products or the proceeds thereof; (hg) each such Borrower and Guarantor Party assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the such Inventory; (ih) no such Borrower or Guarantor Parties shall not sell such Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any such Borrower or Guarantor Party to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor (unless such Inventory may be returned only if it is not damaged and is resalable in the ordinary normal course of the business of business); (i) such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor Parties shall keep the such Inventory in good and marketable condition; and (kj) no such Borrower or Guarantor shallParties shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor Representative to Agent pursuant to Section 7.1(aparagraph (a) of Annex F hereof, acquire or accept any such Inventory on consignment or approvalapproval outside the ordinary course of business.
Appears in 1 contract
Samples: Senior Secured, Super Priority Debtor in Possession Credit Agreement (Milacron Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their its expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) except upon prior notice to and written approval by Agent, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (ji) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallBorrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Administrative Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan Agreement (Listerhill Total Maintenance Center LLC)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) Borrowers shall conduct cycle counts of the Inventory throughout each Borrower and Guarantor year, but shall conduct a physical count of its Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such a Borrower’s or Guarantor’s business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors each Borrower shall, at their its expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, upon the occurrence or at any time or times as Agent may reasonably request at Borrowers’ expense during the existence of an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hf) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor Borrowers shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance consistent with its current policies as of the then current return policy of such Borrowerdate hereof; (jh) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (ki) no Borrower or Guarantor shallBorrowers shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofAgent, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each New Borrower and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no New Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such New Borrower’s or Guarantor’s 's business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such New Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s Lender's request, Borrowers and Guarantors New Borrower shall, at their its expense, no more than one two (12) time in any twelve (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent Lender and upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (ji) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallshall not, without prior written notice to Agent Lender or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent Lender pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
(n) Section 9.9(i), reading as follows, is added immediately after Section 9.9(h):
(i) Indebtedness of Borrower evidenced by the 10% Senior Secured Notes due August 31, 2010, dated as of September 1, 2005 in the aggregate principal amount of $3,000,000 (the "September 2005 Indebtedness") and secured by a security interest in the Excluded Assets owned by New Borrower, all pursuant to documentation containing terms satisfactorily subordinating such Indebtedness to the Obligations and otherwise acceptable to Lender.
(o) Section 9.17 is amended and restated in its entirety to read as follows:
Appears in 1 contract
Samples: Loan and Security Agreement (Streicher Mobile Fueling Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Borrowers shall at all times maintain inventory Inventory records reasonably satisfactory to AgentAgents, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s Borrowers' cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Borrowers shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Agents may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Agents with a report in the form and with such specificity as may be reasonably satisfactory to Agent Agents concerning such physical count; (c) no Borrower or Guarantor Obligors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentAgents, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s Obligors' business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon either Agent’s 's request, Borrowers and Guarantors shall, at their expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as either Agent may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Agents written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Agents and by an appraiser acceptable to AgentAgents, addressed to Agent and Agents or upon which Agent and Lenders Agents are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor Obligors shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws Applicable Law (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes Obligors assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor Borrowers shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor Borrowers to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (jh) each Borrower and Guarantor Obligors shall keep the Inventory in good and marketable condition; and (ki) no Borrower or Guarantor shallBorrowers shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofAgents, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s 's or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent may request on or after upon the occurrence and during the continuance of an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s 's request, Borrowers and Guarantors shall, at their expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense upon the occurrence and during the continuance of an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance consistent with its current policies of each Borrower or Guarantor as of the then current return policy of such Borrowerdate hereof (as the same may be modified from time to time with Agent's consent); (ji) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallBorrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor Parent to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (Thane International Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower if required by their certified public accountants, Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, if Borrower have elected to increase the percentage advance rate against Eligible Inventory as set forth in clause (a)(ii)(B) of the definition of “Borrowing Base”, no more than two (2) times in any twelve (12) month period during a Compliance Period, and when no Compliance Period exists, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (ji) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallBorrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Administrative Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Inventory. Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s 's business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent’s Lender's request, Borrowers and Guarantors Borrower shall, at their its expense, no more than one (1) time twice in any twelve calendar year (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default), deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an Daley-Hodkin Appraisal Corporation or other appraiser acceptable to AgentLexxxx, addressed xxxxxxsed to Agent and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.;
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shallshall deliver, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered delivered, to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; rely (ei) upon Agent’s request, Borrowers and Guarantors shall, at their Borrowers’ expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory no more than two (2) times in form, scope any twelve (12) month period (and methodology acceptable to Agent no more than one (1) time in any twelve (12) month periodperiod in the event that Excess Availability is equal to or greater than $100,000,000 at all times during the most recently ended twelve (12) consecutive months), but at any time or times as Agent may request in excess of the number of appraisals set forth above at the expense of Agent and Lenders, or (ii) at a time to coincide with Borrowers’ and expense at any time on or Guarantors’ physical count after an Event of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Default; (e) Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except (i) for the right of return given by Borrowers to retail its customers of any Borrower or Guarantor in the ordinary course of business consistent with the current practices of Borrowers as of August 1, 2003; and (ii) sales to customers on consignment in the ordinary course of business of such Borrower or Guarantor in accordance consistent with the then current return policy practices of Borrowers in effect on August 1, 2003, provided, that, (A) a report of such BorrowerInventory is provided by Borrowers to Agent pursuant to Section 7.1 hereof and (B) in no event shall the aggregate dollar amount of all such Inventory so sold exceed $2,500,000 at any time; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no each Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, shall not acquire or accept any Inventory on consignment or approvalapproval without including such Inventory in a report of such Inventory provided by Borrowers to Agent pursuant to Section 7.1 hereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Pep Boys Manny Moe & Jack)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s 's or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Borrowers and Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s 's request, Borrowers and Guarantors shall, at their expense, no more than one four (14) time times in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Borrowers and Guarantor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (ji) each Borrower Borrowers and Guarantor shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Borrowers and Guarantor shallshall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Administrative Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s the cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no each Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s 's business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such each Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s Lender's request, Borrowers and Guarantors shall, at their expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent Lender and upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hf) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no each Borrower or Guarantor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (jh) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (ki) no each Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, shall not acquire or accept any Inventory on consignment or approvalapproval without including such Inventory in a report of such Inventory provided by Borrowers to Lender pursuant to Section 7.1 hereof.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s 's or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s 's request, Borrowers and Guarantors shall, at their expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; [*] (ji) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallBorrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Administrative Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval. In addition to, and not in limitation of, the foregoing, with respect to Imported Inventory, Borrowers shall cause all bills of lading and other documents of title evidencing, covering or otherwise relating to Imported Inventory in transit to the premises of Borrowers or the premises of a Customs Broker or a Port Processor in the United States to name FNA as consignee, and Borrowers shall promptly deliver to Agent, upon Agent's request, a copy of each xxxx of lading or other document of title issued to FNA covering Imported Inventory purchased by FNA and delivered to a Freight Forwarder for shipment to FNA during the immediately preceding week; provided, however, that following Agent's written request delivered to Borrowers, Borrowers shall cause the issuer of each such xxxx of lading or other document of title to promptly deliver directly to Agent the original of each such xxxx of lading or other document of title, which shall be released by Agent only upon Agent's receipt of evidence, satisfactory to Agent, that the Imported Inventory covered thereby has been delivered into the possession of a Port Processor or Customs Broker from whom Agent has received a duly executed Collateral Access Agreement. In addition, at such time as Agent may direct, Borrower shall cause Agent or such financial institution or other person as Agent may specify to be named as consignee in all such bills of lading and other documents of title. Borrower shall cause all bills of lading or other documents of title evidencing FNA's Imported Inventory to be issued in the form of negotiable documents, as such term is defined in the Uniform Commercial Code. * Confidential information has been omitted pursuant to a request to the Securities and Exchange Commission for confidential treatment. The information has been separately filed with the Commission. Without limiting the generality of Section 7.3(h), Borrowers shall provide to Agent copies of all proposed agreements with any customers pursuant to which Borrowers would sell Inventory to such customers on a sale and return basis; provided that, Borrowers' compliance with the foregoing shall in no manner be deemed or constitute Agent's or Required Lenders' consent to Borrowers' sale of inventory to any customers on a sale and return basis.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: Inventory (other than Inventory that is an Excluded Asset): (a) each Borrower and Guarantor Debtor shall at all times maintain inventory records reasonably satisfactory to Collateral Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or GuarantorDebtor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Debtor shall conduct a physical count of its such Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Collateral Agent may reasonably request (but not more than once per year) on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Collateral Agent with a report in the form and with such specificity as may be reasonably satisfactory to Collateral Agent concerning such physical count; (c) no Borrower or Guarantor Debtor shall remove any such Inventory from the locations set forth or permitted herein, without the prior written consent of Perfection Agent, except for sales and movement or transport of such Inventory in the ordinary course of such Borrower’s or GuarantorDebtor’s business and except to move such Inventory directly from one location set forth or of permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor Debtor shall produce, use, store and maintain the such Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (he) each Borrower and Guarantor Debtor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the such Inventory; (if) no Borrower or Guarantor Debtor shall sell such Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor such, Debtor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor (other than in the ordinary course of the business of such Borrower or Guarantor in accordance consistent with the then current return policy of such Borrowerpast practices); (jg) each Borrower and Guarantor Debtor shall keep the such Inventory in good and marketable condition; and (kh) no Borrower or Guarantor Debtor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofCollateral Agent, acquire or accept any such Inventory on consignment or approvalapproval (other than in the ordinary course of business consistent with past practices).
Appears in 1 contract
Samples: Security Agreement (Atlantic Express Transportation Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower Obligor shall and Guarantor Parent shall cause each Additional L/C Debtor to at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s Obligors’ cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Obligors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each yearyear (at which representatives of Agent may be present) and at such time or times as is consistent with current practices, but at any time or times as Agent may request on or after an Event of DefaultDefault has occurred and is continuing in accordance with clause (e) below, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Obligors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except except: (i) for sales of Inventory in the ordinary course of such Borrowerany Obligor’s or Guarantor’s business and except business, (ii) to move Inventory directly from one location set forth or permitted herein to another such location and except location, (iii) for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor Obligors which is in transit to the locations set forth or permitted herein, and (iv) in connection with any other transactions or dispositions permitted by this Agreement; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, shall deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory of Obligors in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely; provided, that, (i) Borrowers acknowledge and agree that such Inventory reports and appraisals shall be requested by Agent and shall be delivered by Borrowers with at least the Required Frequency and may be requested by Agent and shall be delivered by Borrowers at any time following the occurrence and during the continuance of an Event of Default; and (ii) all such Inventory reports and appraisals shall be at the expense of Borrowers, except for Inventory reports and appraisals in excess of the Required Frequency, provided, that, all such Inventory reports and appraisals shall be at the expense of Borrowers at any time that an Event of Default shall exist or shall have occurred and be continuing; (e) upon Agent’s requestafter the occurrence and during the continuance of an Event of Default, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service reasonably acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period existsAgent, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent (or in a form substantially similar to the confirmation most recently delivered to and accepted by Agent in accordance with this Section) that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors Obligors to reconcile the inventory count to Borrowers’ and GuarantorsObligors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes Obligors assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor each Obligor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor Obligors to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor Obligors in the ordinary course of the business of such Borrower or Guarantor Obligors in accordance with the then current return policy of such BorrowerObligor; (jh) each Borrower and Guarantor Obligors shall keep the Inventory in good and marketable conditioncondition (taken as a whole); and (ki) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, Obligors shall not acquire or accept any Inventory on consignment or approval, except for the sale of lines other than apparel to the extent such Inventory is reported to Agent in accordance with the terms hereof.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom there from and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s 's business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent’s Lender's request, Borrowers and Guarantors Guarantor shall, at their its expense, no more than one four (14) time times in any twelve (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or except in the ordinary course of business and then only on prompt reporting thereof to Lender Guarantor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (jh) each Borrower and Guarantor shall keep the Inventory in good and marketable condition, subject to normal deterioration of produce, deli and bakery food products, expired foods, and products with short expiration dates or shelf-life; and (ki) no Borrower or except in the ordinary course of business and then only on prompt report thereof to Lender, Guarantor shallshall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor Borrowers shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such each Borrower’s or Guarantor’s 's cost therefor and daily or weekly withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Borrowers shall conduct (i) a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after an Event of Default, and (ii) test counts of inventory at any time or times as Lender may request utilizing a third party service therefore designated by Lender, and promptly following such physical inventory (whether through periodic cycle and test counts or wall to wall counts) of inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical countcount and test counts; (c) no Borrower or Guarantor Borrowers shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such a Borrower’s or Guarantor’s 's business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent’s Lender's request, Borrowers and Guarantors shall, at their expense, no more than one (1) time four times in any twelve (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes Borrowers assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor except in the ordinary course of business, and then only on prompt reporting thereof to Lender, Borrowers shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such a Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (jh) each Borrower and Guarantor Borrowers shall keep the Inventory in good and marketable condition, subject to normal deterioration of produce, deli and bakery food products, expired foods, and products with short expiration dates or shelf - life; and
(i) except in the ordinary course of business and (k) no Borrower or Guarantor shallthen only on prompt reporting thereof to Lender, Borrowers shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (Nutritional Sourcing Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Operating Company shall at all times maintain inventory records reasonably satisfactory to Agentconsistent with industry norms, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or GuarantorOperating Company’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor neither Operating Company shall conduct a physical count of its store any material Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts other than at least once each year, but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor shall remove any Inventory from the locations set forth or permitted hereinout in the Information Certificate, without providing written notice to the prior written consent of Administrative Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s business and except to move Inventory directly moved from one location set forth in the Information Certificate or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (dc) upon Agent’s request, Borrowers and Guarantors each Operating Company shall, at their expense, no more than one (1) upon reasonable request from time in any twelve (12) month period, but at any to time or times as Agent may request at by the Administrative Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to the Administrative Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent the Administrative Agent, acting reasonably, and by an appraiser acceptable to the Administrative Agent, acting reasonably, addressed to the Administrative Agent or upon which the Administrative Agent and upon which Agent and the Lenders are expressly permitted to rely; provided that: (ei) upon Agentany such appraisal requested while there exists an Event of Default shall be at Borrower’s requestexpense; (ii) if no Event of Default exists at the time of an audit, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count neither Operating Company shall be responsible for the cost of the Inventory in form, scope and methodology acceptable to Agent no more than one (1increasing to two during any period a Trigger Event is continuing) time appraisal in any twelve (12) month period, period (provided that Lender waives any appraisal costs should Excess Availability remain in excess of $50,000,000 as at the Borrower’s month-end borrowing base report for each of the prior twelve (12) months); and at a (iii) additional appraisals may be required from time to coincide with Borrowers’ time, no more frequently than semi-annually upon approval of all Lenders acting reasonably and or Guarantors’ physical count of upon reasonable prior notice to the InventoryBorrower, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to be, absent the inventory records continuance of Borrowers and Guarantors to reconcile the inventory count to Borrowersan Event of Default, at Lenders’ and Guarantors’ inventory recordsexpense; (fd) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in material conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto)Applicable Law; (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (he) each Borrower and Guarantor Operating Company assumes all responsibility and liability arising from or relating to the such Operating Company’s production, use, sale or other disposition of the Inventory; (if) no Borrower or Guarantor neither Operating Company shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor Operating Company to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor (other than in accordance with the then current such Operating Company’s ordinary course return policy of such Borrowerand general market practice); (jg) each Borrower and Guarantor Operating Company shall keep the Inventory in good and marketable condition; and (kh) no Borrower or Guarantor shalleach Operating Company shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofAdministrative Agent, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan Agreement (Andersons, Inc.)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Administrative and Collateral Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each yearyear (which may be done by way of a cycle count), but at any time or times as Administrative and Collateral Agent may reasonably request on or after during the existence of an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Administrative and Collateral Agent with a report in the form and with such specificity as may be reasonably satisfactory to Administrative and Collateral Agent concerning such physical count; (c) no Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Administrative and Collateral Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Administrative and Collateral Agent’s request, Borrowers and Guarantors Borrower shall, at their its expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Administrative and Collateral Agent may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Administrative and Collateral Agent a full written reports or appraisals appraisal as to the Inventory in form, scope and methodology reasonably acceptable to Administrative and Collateral Agent and by an appraiser acceptable to Administrative and Collateral Agent, addressed to Administrative and Collateral Agent and Lenders and upon which Administrative and Collateral Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.;
Appears in 1 contract
Samples: Loan and Security Agreement (BlueLinx Holdings Inc.)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s 's or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent Lender may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower or Borrowers and Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s Lender's request, Borrowers and Guarantors shall, at their expense, no more than one two (12) time times in any twelve (12) month period, but at any additional time or times as Agent Lender may request at Agent’s Lender's expense, or at any time or times as Agent Lender may reasonably request at Borrowers’ ' expense during on or after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender (Lender agrees that so long as Hilco is on its approved appraiser list, Lender shall select Hilco to conduct any such appraisals and to the extent, Hilco is not on such list or is otherwise unavailable to conduct such appraisal, to the extent Xxxxxx Xxxxxxxx is on Lender's approved list Lender shall endeavor to use Xxxxxx Xxxxxxxx to conduct such appraisal), addressed to Agent Lender and upon which Agent and Lenders are is expressly permitted to rely; (e) upon Agent’s requestafter the occurrence and during the continuance of an Event of Default, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service reasonably acceptable to AgentLender, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period existsLender, the results of which shall be reported directly by such inventory counting service to Agent Lender (with a copy to Parent) and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent Lender that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ ' inventory records; (f) each Borrower Borrowers and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity in all material respects with applicable laws (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower Borrowers and Guarantor assumes assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no each Borrower or and Guarantor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower Borrowers or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Borrowers and Guarantor in the ordinary course of the business of such Borrower or Borrowers and Guarantor in accordance with the then current return policy of such BorrowerBorrowers and Guarantor (in effect on the date hereof); (ji) each Borrower Borrowers and Guarantor shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallBorrowers shall not, without prior written notice to Agent Lender or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent Lender pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (Little Switzerland Inc/De)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agentconsistent with the current practices of such Borrower and Guarantor as of the date hereof, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s 's or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once twice each year, year but at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s 's request, Borrowers and Guarantors shall, at their expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, on or at any time or times after an Event of Default and for so long as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Periodthe same is continuing, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to relyrely (provided, that, any appraisal requested at such time as an Event of Default exists or has occurred and is continuing shall not be considered for purposes of the limitation on the number of appraisals provided for herein); (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance in all material respects and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for other than the right of customers to return given to retail customers of any Borrower defective or Guarantor non-conforming goods in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrowerbusiness; (ji) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory generally in good and marketable condition; and (kj) no Borrower or Guarantor shallBorrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such US Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower Obligor shall and Guarantor Parent shall cause each Additional L/C Debtor to at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s Obligors’ cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Obligors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each yearyear (at which representatives of Agent may be present) and at such time or times as is consistent with current practices, but at any time or times as Agent may request on or after an Event of DefaultDefault has occurred and is continuing in accordance with clause (e) below, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Obligors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except except: (i) for sales of Inventory in the ordinary course of such Borrowerany Obligor’s or Guarantor’s business and except business, (ii) to move Inventory directly from one location set forth or permitted herein to another such location and except location, (iii) for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor Obligors which is in transit to the locations set forth or permitted herein, and (iv) in connection with any other transactions or dispositions permitted by this Agreement; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, shall deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory of Obligors in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely; provided, that, (i) Borrowers acknowledge and agree that such Inventory reports and appraisals shall be requested by Agent and shall be delivered by Borrowers with at least the Required Frequency and may be requested by Agent and shall be delivered by Borrowers at any time following the occurrence and during the continuance of an Event of Default; and (ii) all such Inventory reports and appraisals shall be at the expense of Borrowers, except for Inventory reports and appraisals in excess of the Required Frequency, provided, that, all such Inventory reports and appraisals shall be at the expense of Borrowers at any time that an Event of Default shall exist or shall have occurred and be continuing; (e) upon Agent’s requestafter the occurrence and during the continuance of an Event of Default, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service reasonably acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period existsAgent, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors Obligors to reconcile the inventory count to Borrowers’ and GuarantorsObligors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes Obligors assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor each Obligor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor Obligors to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor Obligors in the ordinary course of the business of such Borrower or Guarantor Obligors in accordance with the then current return policy of such BorrowerObligor; (jh) each Borrower and Guarantor Obligors shall keep the Inventory in good and marketable conditioncondition (taken as a whole); and (ki) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, Obligors shall not acquire or accept any Inventory on consignment or approval, except for the sale of lines other than apparel to the extent such Inventory is reported to Agent in accordance with the terms hereof.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s 's or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after at any time an Event of DefaultDefault exists or has occurred and is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s 's request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely, but so long as no Cash Dominion Event, Default or Event of Default shall exist, no more than two (2) such appraisals at the cost and expense of Borrowers in any calendar year; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hf) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any such Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerBorrower or Guarantor; (jh) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and (ki) no Borrower Borrowers and Guarantors shall not acquire or Guarantor shall, without prior written notice to Agent accept any Inventory on consignment or the specific identification of approval unless such Inventory has been specifically identified in a report with respect thereto provided by such Administrative Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire hereof when required to be included in such report or accept any Inventory on consignment or approvalAgent has otherwise received prior written notice thereof in form and substance satisfactory to Agent.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Loan Party shall at all times maintain inventory records reasonably satisfactory to Administrative Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s Loan Party's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Loan Parties shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as the Administrative Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply the Administrative Agent with a report in the form and with such specificity as may be reasonably satisfactory to the Administrative Agent concerning such physical count; (c) no Borrower or Guarantor Loan Parties shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Administrative Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such the Borrower or such Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Administrative Agent’s 's request, Borrowers and Guarantors Borrower shall, at their expense, no more than one two (12) time times in any twelve (12) -month period, but at any time or times as Administrative Agent may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Administrative Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Administrative Agent and by an appraiser acceptable to Administrative Agent, addressed to Agent Agents and Lenders and upon which Agent Agents and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor Loan Parties shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hf) each Borrower and Guarantor Loan Party assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor Loan Parties shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor (other than returns permitted in the ordinary course of such Loan Party's business as disclosed in writing to Administrative Agent on or prior to the business of Effective Date) or may obligate any Loan Party to repurchase such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (jh) each Borrower and Guarantor Loan Parties shall keep the Inventory in good and marketable condition; and (ki) no Borrower or Guarantor shallLoan Parties shall not, without prior written notice to Administrative Agent or the specific identification of such Inventory in a report with respect thereto provided by such the Borrower or Guarantor to Administrative Agent pursuant to Section 7.1(a8.05(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor Borrowers shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s Borrowers’ cost therefor and daily withdrawals therefrom and additions thereto; ;
(b) each Borrower and Guarantor Borrowers shall cause a third party firm acceptable to Agent to conduct a complete physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least a minimum of once each year, every twelve (12) months but at any time or times as Agent may reasonably request on or after upon the occurrence and during the continuance of an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) count such firm shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; ;
(c) no Borrower or Guarantor Borrowers shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s Borrowers’ business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; location;
(d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than three (3) times in any twelve (12) month period as to desktop appraisals, and no more than one (1) time in any twelve (12) month periodperiod as to full appraisals, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense upon the occurrence and during the continuance of an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and addressing such issues as Agent may require in its commercially reasonable judgment, issued by an appraiser acceptable to Agent, and addressed to Agent and Lenders or upon which Agent and Lenders are expressly permitted to rely; rely (with the understanding that Agent may revise the definition of ‘Eligible Inventory’ hereunder or establish Availability Reserves as Agent may deem advisable in its sole discretion based upon the results of such updated appraisals);
(e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); *** CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
(gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes Borrowers assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; ;
(ig) no Borrower or Guarantor Borrowers shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor Borrowers to repurchase such Inventory (except for the right of return given to retail customers of any Borrower or Guarantor returns made in the ordinary course of the Borrowers’ business of such Borrower or Guarantor pursuant to their existing policies and in accordance with the then current return policy of such Borrower; their industry standards);
(jh) each Borrower and Guarantor Borrowers shall keep the Inventory in good and marketable condition; and ;
(ki) no Borrower or Guarantor shallBorrowers shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofAgent, acquire or accept any Inventory on consignment or approval; and
(j) upon the occurrence and during the continuance of an Event of Default, Borrowers shall not return any Inventory to its vendors without the prior consent of Agent.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; .
(b) each Each Borrower and Guarantor shall conduct a physical count of its Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after an Event of Default, and and, promptly following such physical inventory count (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; .
(c) no No Borrower or Guarantor shall remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; .
(d) upon Upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to relyrely as follows: (i) if any Revolving Loans have been outstanding (but, for the avoidance of doubt, without regard to any Letters of Credit that may be or may have been outstanding) during any twelve (12) month period ending on the last day of the then current month, no more than one (1) such written appraisal in any twelve (12) month period, (ii) if Compliance Excess Availability is at any time less than or equal to twenty (20%) percent of the Revolving Loan Limit, no more than two (2) such written appraisals in any twelve (12) month period, or (iii) if a Default or an Event of Default exists or has occurred and is continuing, such number of written appraisals as Agent may request; provided, that, at any time or times as Agent may request, at Agent’s expense, Agent may arrange to have appraisals conducted as to the Inventory.
(e) Upon Agent’s request, Borrowers and Guarantors shall, at their expense, deliver or cause to be delivered to Agent field examinations as to the Inventory in form, scope and methodology acceptable to Agent and by a field examiner acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely as follows: (i) if any Revolving Loans have been outstanding (but, for the avoidance of doubt, without regard to any Letters of Credit that may be or may have been outstanding) during any twelve (12) month period ending on the last day of the then current month, no more than one (1) such field exam in any twelve (12) month period, (ii) if Compliance Excess Availability is at any time less than or equal to twenty (20%) percent of the Revolving Loan Limit, no more than two (2) such field examinations in any twelve (12) month period, or (iii) if a Default or an Event of Default exists or has occurred and is continuing, such number of field examinations as Agent may request; provided, that, at any time or times as Agent may request, at Agent’s expense, Agent may arrange to have field examinations conducted as to the Inventory.
(f) Upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Washington Inventory Specialists, Inc. Service or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period existsAgent, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records, as follows: (i) if any Revolving Loans have been outstanding (but, for the avoidance of doubt, without regard to any Letters of Credit that may be or may have been outstanding) during any twelve (12) month period ending on the last day of the then current month, no more than one (1) such written appraisal in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, (ii) if Compliance Excess Availability is at any time less than or equal to twenty (20%) percent of the Revolving Loan Limit, no more than two (2) such physical counts in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, or (iii) if a Default or an Event of Default exists or has occurred and is continuing, such number of physical counts as Agent may request; provided, that, at any time or times as Agent may request, at Agent’s expense, Agent may arrange to have written reports or appraisals conducted as to the Inventory.
(fg) each Each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); .
(gh) none None of the Inventory or other Collateral constitutes farm products or the proceeds thereof; .
(hi) each Each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; .
(ij) no No Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; .
(jk) each Each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and .
(kl) no No Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (RTW Retailwinds, Inc.)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory Inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall continue their current practices for conducting physical counts of Inventory in the distribution centers and the retail stores but shall also conduct a such physical count counts of its such Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) Inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted hereinin the Security Documents, without the prior written consent of Agent, except for sales or other dispositions of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one two (12) time times in any twelve (12) month period, but and in addition, at any time or times as Agent may request at Agent’s expense, on or after the occurrence and during the continuance of an Event of Default or at any time or times as Agent may reasonably request Excess Availability is less than $125,000,000, and in any event at Borrowers’ any time at the expense during an Additional Appraisal/Field Exam Periodof the Lenders, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower Borrowers and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor Guarantors shall not sell Inventory to any customer on approval, or any other basis upon which entitles the customer has a right to return or may obligate such obligates any Borrower or Guarantor to repurchase such Inventory except for (it being acknowledged that this does not include discretionary decisions on the right part of return given Borrowers and Guarantors to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable conditionrepurchase Inventory); and (kg) no Borrower or Guarantor shall, without prior written notice to Agent or Borrowers and Guarantors shall maintain current rent payments (within applicable grace periods contained in the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(aleases) hereof, acquire or accept any Inventory on consignment or approvalat all locations that contain Inventory.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s 's or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent Lender may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender which consent shall not be unreasonably withheld or delayed, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s Lender's request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent Lender and upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (ji) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallBorrowers and Guarantors shall not, without prior written notice to Agent Lender or the specific identification of such Inventory in a report with respect thereto provided by such Administrative Borrower or Guarantor to Agent Lender pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Operating Company shall at all times maintain inventory records reasonably satisfactory to Agentconsistent with industry norms, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or GuarantorOperating Company’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor neither Operating Company shall conduct a physical count of its store any material Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts other than at least once each year, but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor shall remove any Inventory from the locations set forth or permitted hereinout in the Information Certificate, without providing written notice to the prior written consent of Administrative Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s business and except to move Inventory directly moved from one location set forth in the Information Certificate or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (dc) upon Agent’s request, Borrowers and Guarantors each Operating Company shall, at their expense, no more than one (1) upon reasonable request from time in any twelve (12) month period, but at any to time or times as Agent may request at by the Administrative Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to the Administrative Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent the Administrative Agent, acting reasonably, and by an appraiser acceptable to the Administrative Agent, acting reasonably, addressed to the Administrative Agent or upon which the Administrative Agent and upon which Agent and the Lenders are expressly permitted to rely; provided that: (ei) upon Agentany such appraisal requested while there exists an Event of Default shall be at Borrower’s requestexpense; (ii) if no Event of Default exists at the time of an audit, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count neither Operating Company shall be responsible for the cost of the Inventory in form, scope and methodology acceptable to Agent no more than one (1increasing to two during any period a Trigger Event is continuing) time appraisal in any twelve (12) month period, period (provided that Lender waives the requirement for such appraisal should Excess Availability remain in excess of $50,000,000 as at the Borrower’s month-end borrowing base report for each of the prior twelve (12) months); and at a (iii) additional appraisals may be required from time to coincide with Borrowers’ time, no more frequently than semi-annually upon approval of all Lenders acting reasonably and or Guarantors’ physical count of upon reasonable prior notice to the InventoryBorrower, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to be, absent the inventory records continuance of Borrowers and Guarantors to reconcile the inventory count to Borrowersan Event of Default, at Lenders’ and Guarantors’ inventory recordsexpense; (fd) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in material conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto)Applicable Law; (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (he) each Borrower and Guarantor Operating Company assumes all responsibility and liability arising from or relating to the such Operating Company’s production, use, sale or other disposition of the Inventory; (if) no Borrower or Guarantor neither Operating Company shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor Operating Company to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor (other than in accordance with the then current such Operating Company’s ordinary course return policy of such Borrowerand general market practice); (jg) each Borrower and Guarantor Operating Company shall keep the Inventory in good and marketable condition; and (kh) no Borrower or Guarantor shalleach Operating Company shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofAdministrative Agent, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Second Amended and Restated Loan Agreement (Andersons, Inc.)
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor Borrowers shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s Borrowers' cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor Borrowers shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower or Guarantor Borrowers shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such a Borrower’s or Guarantor’s 's business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) at least annually, and at such other times upon Agent’s Lender's request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent Lender may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent Lender written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Lender (which shall include a determination of the Orderly Liquidation Value of such Inventory) and by an appraiser acceptable to AgentLender, addressed to Agent and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.;
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, counts so that at least ninety-five (95%) percent of all Inventory is subject to such counts at least once each year, year during the term hereof but at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall countscount) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, (i) at their expense, no more than one two (12) time times in any twelve (12) month period, but (ii) at their expense one (1) additional time at any time that Excess Availability is less than $10,000,000, (iii) at Agent’s expense, two (2) further additional times, as Agent may request in such twelve (12) month period and (iv) at any time or times at Borrowers’ expense as Agent may request at Agent’s expense, if a Default or at any time Event of Default shall exist or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Periodhave occurred and be continuing, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such any Borrower or Guarantor to repurchase such Inventory Inventory, except for the right of to return given to retail customers of any Borrower or Guarantor Borrowers in the ordinary course of the business of such Borrower or Guarantor Borrowers in accordance with the then current return policy of such BorrowerBorrowers; (ji) each Borrower Borrowers and Guarantor Guarantors shall keep the Inventory in good and marketable conditioncondition (subject to Borrowers’ normal reserves for damaged and defective Inventory); and (kj) no Borrower or Guarantor shallBorrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Administrative Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality type and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may in good faith be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except (i) for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s business and except its business, (ii) to move Inventory directly from one location set forth or permitted herein to another such location location, and except for (iii) Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, Borrower shall deliver or cause to be delivered to Agent delivered, at its expense (i) a written reports or appraisals appraisal as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; rely (e) upon Agent’s requesteach such appraisal being referred to as an “Inventory Appraisal”), Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time once in any twelve (12) month period, (ii) an Inventory Appraisal at any time or times as Agent may request on or after an Event of Default and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, for so long as no the same is continuing, and (iii) an Inventory Appraisal, at any time that Excess Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service less than the amount equal to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records$40,000,000; (fe) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory (except for the right of customers to return given to retail customers of any Borrower defective or Guarantor non-conforming goods in the ordinary course of the business of such Borrower or Guarantor in accordance consistent with the then current return policy practices of such BorrowerBorrower as of the date hereof); (jh) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (ki) no Borrower or Guarantor shallshall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval. Not later than ninety (90) days after the date hereof, Borrower shall deliver to Agent and Lenders an appraisal of all Inventory of Borrower, in form and scope acceptable to Agent, performed by an appraiser acceptable to Agent and upon which Agent is expressly authorized to rely. In addition, no later than fifteen (15) days after the date hereof, Borrower shall deliver to Agent and Lenders the appraisal being currently conducted by Xxxxx Xxxxxx LLC of all Inventory acquired pursuant to the Permitted Atlantis Plastics Acquisition, in form and scope acceptable to Agent, upon which Agent is expressly authorized to rely.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s 's or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its their Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year or provide inventory cycle count data in form and substance satisfactory to Agent at least once each year with respect to those of their locations at which physical counts are not otherwise conducted (but at any time or times as Agent may request on or after an Event of Default, Borrowers and Guarantors shall conduct a physical count of the Inventory), and promptly following such physical inventory (whether through periodic and/or provision of cycle counts or wall count data in form and substance satisfactory to wall counts) Agent, shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical countcount and/or cycle count data; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s 's request, Borrowers and Guarantors shall, at their expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.;
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor the Borrowers shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such the applicable Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor the Borrowers shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after an Event of DefaultDefault that has occurred and is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor the Borrowers shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course Ordinary Course of such Borrower’s or Guarantor’s business Business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent’s request, request the Borrowers and Guarantors shall, at their its expense, but no more than one (1) time once in any twelve six (126) month period, but at any time or times as Agent may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default that has occurred and is continuing, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent Required Lenders and by an appraiser acceptable to AgentRequired Lenders, addressed to Agent and or upon which Agent and Lenders are is expressly permitted to rely; (e) upon Agent’s request, the Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes Borrowers assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor the Borrowers shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor the Borrowers to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (jh) each Borrower and Guarantor the Borrowers shall keep the Inventory in good and marketable condition; and (ki) no Borrower or Guarantor shallthe Borrowers shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofAgent, acquire or accept any Inventory on consignment or approval.approval and (j) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof
Appears in 1 contract
Samples: Us Loan Agreement (SMTC Corp)
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of Inventory and such Borrower’s 's or Guarantor’s Inventory, such Borrower’s or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions theretotherefor; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent may request at any time on or after an Event of DefaultDefault exists or has occurred and is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit (including any Inventory that may be at US Customs bonded warehouses pending customs clearance) to the locations set forth or permitted herein; (d) upon Agent’s 's request, Borrowers and Guarantors shall, at their expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time on or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default exists or has occurred and is continuing, deliver or cause to be delivered to Agent written reports appraisals (or appraisals updates of appraisals) as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.;
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor the Cost therefor, the retail sales price thereof, and daily withdrawals therefrom and additions thereto; ;
(b) each Borrower and Guarantor shall conduct a physical count of its Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each yearon a semi-annual basis, but at any time or times as Agent Agent, in good faith, may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; provided, however, during any Availability Cure Period, each Borrower shall conduct such physical counts of its Inventory and deliver such reports to Agent on a quarterly basis if Agent, in good faith, so requests;
(c) no Borrower or Guarantor shall remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except (i) for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s 's business and except (which shall be deemed to include internet sales), (ii) to move Inventory directly from one location set forth or permitted herein to another such location and except location, (iii) for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; , and (iv) for Inventory sold at non-Borrower locations in the ordinary course of business not to exceed $1,000,000 for any one location or $2,000,000 in the aggregate at any one time;
(d) upon Borrowers agree to provide to Agent’s request, Borrowers and Guarantors shallon a quarterly basis, at their expensea full appraisal of the Inventory, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and performed by an appraiser reasonably acceptable to Agent, addressed at the sole cost of Borrowers, indicating the Net Orderly Liquidation Value of the Inventory; provided, however, if at any time Excess Availability is less than $35,000,000, then Borrower's shall also provide to Agent and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shallon a monthly basis, at their expensea desktop appraisal, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service performed by an appraiser reasonably acceptable to Agent, a physical count at the sole cost of Borrowers, indicating the Net Orderly Liquidation Value of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which monthly desktop appraisals shall be reported directly by required until such inventory counting service time as Excess Availability is $35,000,000 or more for ninety (90) consecutive days;
(e) each Borrower agrees to Agent safeguard, protect and Borrowers hold all Inventory for Agent's account and Guarantors shall promptly deliver confirmation make no disposition thereof except in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records ordinary course of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; its business, as herein provided;
(f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; ;
(ig) no each Borrower or Guarantor shall sell agrees that Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate will be sold and shipped by such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail its customers of any Borrower or Guarantor only in the ordinary course of the business of such Borrower's business, and then only on open account and on terms currently being extended by such Borrower or Guarantor in accordance with the then current return policy of such Borrower; to its customers;
(jh) each Borrower and Guarantor shall use reasonable efforts to keep the Inventory in good and marketable condition; and and
(ki) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, shall acquire or accept any Inventory on consignment or approvalapproval (i) if any such item of Inventory has the same SKU as any item of Inventory otherwise sold or held for sale by such Borrower or (ii) without prior written notice to Agent and the specific identification of such Inventory (including, without limitation, location, type of Inventory and name of consignor) with respect thereto; provided, however, that such notice is not required if such Inventory is consigned to Borrower Agent and would not cause the total amount of consigned Inventory at any one retail location of Borrower Agent to exceed $100,000 or the aggregate amount of consigned Inventory at all of Borrower Agent's retail locations to exceed $1,200,000.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors Borrower shall, at their its expense, no more than one four (14) time times in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hg) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ih) no Borrower or Guarantor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (ji) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (kj) no Borrower or Guarantor shallshall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the InventoryInventory of any Borrower Party that is included by the Borrower Representative as Eligible Inventory or Eligible Machinery-in-Process in the calculation of the Aggregate Borrowing Base: (a) each such Borrower and Guarantor Party shall at all times maintain inventory records reasonably satisfactory to AgentAgent (it being acknowledged that Agent is not aware of any inventory records that are not reasonably satisfactory), keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or GuarantorBorrower Party’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each such Borrower and Guarantor Parties shall conduct a physical count of its such Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after an Event of Defaultreasonably request, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical countcount (it being acknowledged that Agent is not aware of any current practices that are not reasonably satisfactory); (c) no such Borrower or Guarantor Parties shall not remove any such Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of such Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move such Inventory directly from one location set forth or permitted herein to another such location and except for such Inventory shipped from the manufacturer thereof to such Borrower or Guarantor Party which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors the Borrower Parties shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals as to the such Inventory in form, scope and methodology reasonably acceptable to Agent (and consistent with the methodology used by AccuVal) by AccuVal or an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor Parties shall produce, use, store and maintain the Inventory, such Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the such Inventory or other Collateral constitutes shall constitute farm products or the proceeds thereof; (hg) each such Borrower and Guarantor Party assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the such Inventory; (ih) no such Borrower or Guarantor Parties shall not sell such Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any such Borrower or Guarantor Party to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor (unless such Inventory may be returned only if it is not damaged and is resalable in the ordinary normal course of the business of business); (i) such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor Parties shall keep the such Inventory in good and marketable condition; and (kj) no such Borrower or Guarantor shallParties shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor Representative to Agent pursuant to Section 7.1(aparagraph (a) of Annex F hereof, acquire or accept any such Inventory on consignment or approvalapproval outside the ordinary course of business.
Appears in 1 contract
Samples: Credit Agreement (Milacron Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Borrowers shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s Borrowers' cost therefor and daily withdrawals and drawdowns therefrom and additions thereto; (b) each Borrower and Guarantor Borrowers shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers shall not remove any Inventory from the locations set forth or permitted herein, in SCHEDULE 8.3 to the Agreement without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s Borrowers' business and except to move Inventory directly from one location set forth or permitted herein in SCHEDULE 8.3 to the Agreement to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent’s 's request, Borrowers and Guarantors shall, at their expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, on or at any time or times as Agent may reasonably request at Borrowers’ expense during after an Additional Appraisal/Field Exam PeriodEvent of Default, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and or upon which Agent and Lenders are is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes Borrowers assume all responsibility and liability arising from or relating to the production, storage, transportation, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor Borrowers shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor Borrowers to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory; (j) each Borrower and Guarantor Borrowers shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shallBorrowers shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofAgent, acquire or accept any Inventory on consignment or approval, other than pursuant to the Processing Agreement; (j) any time after, and during any period of time that, the Excess Availability is less than $25,000,000, Borrowers shall permit Agent or its agents, at Borrowers' expense, to conduct a physical count of Inventory in storage tanks, wherever located, on a quarterly basis, and (k) any time after, and during any period of time that, the Excess Availability is less than $10,000,000, Borrowers shall permit Agent or its agents, at Borrowers' expense, to conduct a physical count of Inventory in storage tanks, wherever located, on a monthly basis.
Appears in 1 contract
Samples: Loan and Security Agreement (Crown Central Petroleum Corp /Md/)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s 's or Guarantor’s 's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower Borrowers and Guarantor Guarantors shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, year but at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s its business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s 's request, Borrowers and Guarantors shall, at their expense, no more than one (1) time twice in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, on or at any time or times after an Event of Default and for so long as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Periodthe same is continuing, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to AgentAgent and Co-Arranger, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (g) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hf) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (i) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (j) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (k) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.;
Appears in 1 contract
Samples: Loan and Security Agreement (Allou Health & Beauty Care Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Borrower’s or Guarantor’s Inventory, such Borrower’s or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent may request on or after an Event of Default, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) no Borrower or Guarantor shall remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales of Inventory in the ordinary course of such Borrower’s or Guarantor’s business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request at Agent’s expense, or at any time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent written reports or appraisals as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to relyrely as follows: (i) so long as Compliance Excess Availability is greater twenty (20%) percent of the Revolving Loan Limit, no more than one (1) such written appraisal in any twelve (12) month period, (ii) if Compliance Excess Availability is at any time less than or equal to twenty (20%) percent of the Revolving Loan Limit, no more than two (2) such written appraisals in any twelve (12) month period, and (iii) if a Default or an Event of Default exists or has occurred and is continuing, such number of written appraisals as Agent may request; provided, that, at any time or times as Agent may request, at Agent’s expense, Agent may arrange to have appraisals conducted as to the Inventory; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, deliver or cause to be delivered to Agent field examinations as to the Inventory in form, scope and methodology acceptable to Agent and by a field examiner acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely as follows: (i) so long as Compliance Excess Availability is greater twenty (20%) percent of the Revolving Loan Limit, no more than one (1) such field examination in any twelve (12) month period, (ii) if Compliance Excess Availability is at any time less than or equal to twenty (20%) percent of the Revolving Loan Limit, no more than two (2) such field examinations in any twelve (12) month period, and (iii) if a Default or an Event of Default exists or has occurred and is continuing, such number of field examinations as Agent may request; provided, that, at any time or times as Agent may request, at Agent’s expense, Agent may arrange to have field examinations conducted as to the Inventory; (f) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Washington Inventory Specialists, Inc. Service or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period existsAgent, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records, as follows: (i) so long as Compliance Excess Availability is greater twenty (20%) percent of the Revolving Loan Limit, no more than one (1) such physical count in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, (ii) if Compliance Excess Availability is at any time less than or equal to twenty (20%) percent of the Revolving Loan Limit, no more than two (2) such physical counts in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, and (iii) if a Default or an Event of Default exists or has occurred and is continuing, such number of physical counts as Agent may request; provided, that, at any time or times as Agent may request, at Agent’s expense, Agent may arrange to have written reports or appraisals conducted as to the Inventory; (fg) each Borrower and Guarantor shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gh) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (hi) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ij) no Borrower or Guarantor shall sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor to repurchase such Inventory except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of such Borrower or Guarantor in accordance with the then current return policy of such Borrower; (jk) each Borrower and Guarantor shall keep the Inventory in good and marketable condition; and (kl) no Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (New York & Company, Inc.)
Inventory Covenants. With respect to the Inventory: :
(a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to AgentLender, keeping correct and accurate records itemizing and describing the kind, type, quality and quantity of such Inventory, Borrower’s or Guarantor’s Inventory, such Borrower’s or GuarantorMCE’s cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower and Guarantor shall conduct a physical count of its the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times as Agent Lender may request on or after while an Event of DefaultDefault exists, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) no Borrower or Guarantor and MCE shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales of Inventory in the ordinary course of such Borrower’s or GuarantorMCE’s business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon AgentBorrower shall, at its expense, at Lender’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but deliver or cause to be delivered to Lender four (4) full appraisals as to the Inventory, each in form, scope and methodology acceptable to Lender and by an appraiser acceptable to Lender, addressed to Lender or upon which Lender is expressly permitted to rely; provided however that, while an Event of Default exists, Borrower shall, at its expense, at Lender’s request at any time or times as Agent may request at Agent’s expense, or at any and from time or times as Agent may reasonably request at Borrowers’ expense during an Additional Appraisal/Field Exam Periodto time, deliver or cause to be delivered to Agent written reports or Lender appraisals as to the Inventory Inventory, in form, scope and methodology acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor MCE shall produce, use, store and maintain the Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (gf) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (h) each Borrower and Guarantor assumes MCE assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory; (ig) no Borrower or Guarantor and MCE shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate such Borrower or Guarantor MCE to repurchase such Inventory Inventory, except for the right of return given to retail customers of any Borrower or Guarantor in the ordinary course of the business of or unless such Borrower or Guarantor in accordance with the then current return policy of such BorrowerInventory is not Eligible Inventory; (jh) each Borrower and Guarantor MCE shall keep the Inventory in good and marketable condition; and (ki) no Borrower or Guarantor shalland MCE shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
