Termination and Reduction Fees. If (i) Lender terminates the Revolving Credit Facility after the occurrence of an Event of Default, or (ii) Borrowers terminate the Revolving Credit Facility on a date prior to the Maturity Date, or (iii) Borrowers reduce the Maximum Revolver Amount or if Borrowers and Lender agree to reduce the Maximum Revolver Amount, Borrowers shall pay Lender as liquidated damages (and not as a penalty) a termination or reduction fee, as applicable, in an amount equal to a percentage of the Maximum Revolver Credit (in the case of a termination of the Revolving Credit Facility) or a percentage of the amount of reduction of the Maximum Revolver Amount (in the case of a reduction in the Maximum Revolver Amount) calculated as follows: (A) two percent (2.0%) if the termination or reduction occurs on or before the first anniversary of the Closing Date; (B) one percent (1.0%) if the termination or reduction occurs after the first anniversary of the Closing Date and on or before the second anniversary of the Closing Date; and (C) one-half of one percent (0.50%) if the termination or reduction occurs after the second anniversary of the Closing Date. If the Credit Facility is refinanced in full by a Xxxxx Fargo Bank Regional Commercial Banking Office (and the Credit Facility is terminated in connection therewith) on or after the date that is 18 months after the Closing Date, such refinancing shall not be deemed a termination or reduction resulting in the payment of termination or reduction fees. Deliver to Lender, each of the financial statements, reports, or other items set forth below at the following times in form satisfactory to Lender: as soon as available, but in any event within 25 days after the end of each month (a) an unaudited consolidated and consolidating balance sheet, income statement, statement of cash flow, and statement of owner’s equity with respect to the Borrowers and their respective Subsidiaries during such period and compared to the prior period, prepared in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes, together with a corresponding discussion and analysis of results from management; and (b) a Compliance Certificate along with the underlying calculations, including the calculations to establish compliance with the financial covenants set forth in Section 8 and certain other covenants under this Agreement. as soon as available, but in any event within 25 days after the end of each quarter (a) a comparison of actual financial results with the Projections for each fiscal quarter of the Borrowers. as soon as available, but in any event within 120 after the end of each fiscal year (a) consolidated and consolidating financial statements of Borrowers and their respective Subsidiaries for such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender, prepared in accordance with GAAP, and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, (B) qualification or exception as to the scope of such audit, or (C) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, statement of cash flow, and statement of owner’s equity and, if prepared, such accountants’ letter to management); provided that Borrowers may satisfy the requirement to deliver the foregoing financial statements by providing a electronic “link” to Lender that provides Lender with complete access to such financial statements and notifying Lender each time that such financial statements are available via such electronic link; and (b) a Compliance Certificate along with the underlying calculations, including the calculations to establish compliance with the financial covenants set forth in Section 8 and certain other covenants under this Agreement. as soon as available, but in any event within thirty (30) days prior to the beginning of each of Borrowers’ fiscal years (a) copies of Borrowers’ Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Lender, in its Permitted Discretion, for the forthcoming fiscal year, on a monthly basis, certified by the chief financial officer of Borrowers as being such officer’s good faith estimate of the financial performance of the Borrowers and their respective Subsidiaries during the period covered thereby. if and when filed by any Borrower (to the extent applicable), (a) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports; (b) any other filings made by any Borrower with the SEC; and (c) any other information that is provided by any Borrower to its shareholders generally. Provide Lender with each of the documents and information set forth below at the following times in form and substance satisfactory to Lender: Weekly, by the second Business Day of each week, or more frequently if Lender requests (a) a report of unbilled Accounts, detailing those accounts that have now been billed. Monthly (no later than (i) the 20th day of each month, during the 90-day period after the Closing Date, or (ii) 15th day of each month, at all times after the initial 90-day period after the Closing Date), or more frequently if Lender requests (a) a Borrowing Base Certificate; (b) a monthly Account roll-forward, in a format acceptable to Lender in its discretion; (c) a detailed aging of each Borrower’s Accounts, together with a reconciliation to the monthly Account roll-forward and supporting documentation for any reconciling items noted (delivered electronically in an acceptable format); (d) a report of unbilled Accounts; (e) a detailed calculation of those Accounts that are not eligible for the Borrowing Base; (f) a summary aging, by vendor, of each Borrower’s and its Subsidiaries’ accounts payable (delivered electronically in an acceptable format); (g) notice of all claims, offsets, or disputes asserted by Account Debtors with respect to each Borrower’s and its Subsidiaries’ Accounts; (h) a detailed report regarding each Borrower’s and its Subsidiaries’ cash and Cash Equivalents, including an indication of which amounts constitute Qualified Cash; and (i) if requested by Lender, copies of invoices together with credit memos, and corresponding supporting documentation with respect to invoices and credit memos in excess of an amount determined in the sole discretion of Lender from time to time. Monthly (no later than the thirtieth (30th) day of each month) or more frequently if Lender requests (a) a reconciliation of Accounts aging, and trade accounts payable aging of each Borrower to the general ledger and the monthly financial statements, including any book reserves related to each category. Annually, or more frequently, if requested by Lender (a) a detailed list of each Borrower’s and its Subsidiaries’ customers, with address and contact information; and (b) financial statements and tax returns of each Guarantor. Upon request by Lender (a) copies of purchase orders and invoices for Equipment acquired by each Borrower or its Subsidiaries, and (b) such other reports and information as to the Collateral and as to each Loan Party and its Subsidiaries, as Lender may reasonably request. To: Xxxxx Fargo Bank, National Association 0000 XX 0xx Xxxxxx, 00xx Xxxxx Xxxxxxxx, Xxxxxx 00000 Attn: Relationship Manager—Kitara Media, LLC Re: Compliance Certificate dated [ ] Ladies and Gentlemen: Reference is made to that certain Credit and Security Agreement (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) dated as of November 1, 2013, by and between XXXXX FARGO BANK, NATIONAL ASSOCIATION (“Lender”), and KITARA MEDIA, LLC (the “Borrower”). Capitalized terms used in this Compliance Certificate have the meanings set forth in the Credit Agreement unless specifically defined herein. Pursuant to Schedule 6.1 of the Credit Agreement, the undersigned officer of [_____________] hereby certifies that: 1. Attached is the financial information of Borrower and its Subsidiaries which is required to be furnished to Lender pursuant to Section 6.1 of the Credit Agreement for the period ended ____________, __________ (the “Reporting Date”). Such financial information has been prepared in accordance with GAAP [(except for year-end adjustments and the lack of footnotes)]1, and fairly presents in all material respects the financial condition of Borrower and its Subsidiaries. 2. Such officer has reviewed the terms of the Credit Agreement and has made, or caused to be made under his/her supervision, a review in reasonable detail of the transactions and condition of each Borrower and its Subsidiaries during the accounting period covered by the financial statements delivered pursuant to Schedule 6.1 of the Credit Agreement. 3. Such review has not disclosed the existence on and as of the date hereof, and the undersigned does not have knowledge of the existence as of the date hereof, of any event or condition that constitutes a Default or Event of Default. 4. The representations and warranties of each Loan Party and its Subsidiaries and the Guarantors and their Subsidiaries set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date hereof (except to the extent they relate to a specified date). 5. As of the Reporting Date, the Loan Parties and their respective Subsidiaries are in compliance with the applicable covenants contained in Section 7 and Section 8 of the Credit Agreement as demonstrated on Schedule 1 hereof.
Appears in 1 contract
Termination and Reduction Fees. If
(i) Lender terminates the Revolving Credit Facility after the occurrence of an Event of Default, or (ii) Borrowers terminate the Revolving Credit Facility on a date prior to the Maturity Date, or (iii) Borrowers reduce the Maximum Revolver Amount or if Borrowers and Lender agree to reduce the Maximum Revolver Amount, then Borrowers shall pay Lender as liquidated damages (and not as a penalty) a termination or reduction fee, as applicable, fee in an amount equal to a percentage of the Maximum Revolver Credit (in the case of a termination of the Revolving Credit Facility) Facility or a percentage of the amount of reduction of the Maximum Revolver Amount (in the case of a reduction in the Maximum Revolver Amount) , as the case may be, calculated as follows: (A) two one percent (2.01.00%) if the termination or reduction occurs on or before the first anniversary of the Closing Date; (B) one percent (1.0%) if the termination or reduction occurs after the first anniversary of the Closing Date and on or before the second anniversary of the Closing DateAdvance; and (CB) one-half of one percent (0.50%) if the termination or reduction occurs after the second first anniversary of the Closing Datefirst Advance. If If, with the consent of Lender (which consent may be withheld by Lender in its sole discretion), the Revolving Credit Facility is refinanced in full by a Xxxxx Fargo Bank Regional Commercial Banking Office (and the Credit Facility is terminated in connection therewith) on transferred to another Subsidiary or after the date that is operating division of Lender at least 18 months after the Closing Datedate of the first Advance, such refinancing transfer shall not be deemed a termination or reduction resulting in the payment of termination or reduction feesfees provided that Borrowers agree, at the time of transfer, to the payment of comparable fees in an amount not less than that set forth in this Agreement in the event that any credit facilities extended after such transfer are thereafter terminated early, reduced or prepaid. Deliver to Lender, each of the financial statements, reports, or other items set forth below at the following times in form satisfactory to Lender: as soon as available, but in any event within 25 20 days after the end of each month (a) an unaudited consolidated and consolidating balance sheet, income statement, statement of cash flow, and statement of ownershareholder’s equity with respect to the Borrowers covering each Borrower’s and their respective its Subsidiaries operations during such period and compared to the prior period, prepared in accordance with GAAP, subject to year-end audit adjustments period and the absence of footnotesplan, together with a corresponding discussion and analysis of results from management; and (b) a Compliance Certificate along with the underlying calculations, including the calculations to establish compliance with arrive at EBITDA and Fixed Charge Coverage Ratio, to the financial covenants set forth in Section 8 and certain other covenants under this Agreement. as soon as available, but in any event within 25 days after the end of each quarter (a) a comparison of actual financial results with the Projections for each fiscal quarter of the Borrowersextent applicable. as soon as available, but in any event within 120 days after the end of each fiscal year (a) consolidated and consolidating financial statements of Borrowers each Borrower and their respective its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender, prepared in accordance with GAAP, Lender and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, (B) qualification or exception as to the scope of such audit, or (C) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, statement of cash flow, and statement of ownershareholder’s equity and, if prepared, such accountants’ letter to management); provided that Borrowers may satisfy the requirement to deliver the foregoing financial statements by providing a electronic “link” to Lender that provides Lender with complete access to such financial statements and notifying Lender each time that such financial statements are available via such electronic link; and (b) a Compliance Certificate along with the underlying calculations, including the calculations to establish compliance with arrive at EBITDA and Fixed Charge Coverage Ratio, to the financial covenants set forth in Section 8 and certain other covenants under this Agreementextent applicable. as soon as available, but in any event within thirty (30) 10 days prior to before the beginning start of each of Borrowers’ fiscal years (a) copies of Borrowers’ Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Lender, in its Permitted Discretion, for the forthcoming fiscal year, on a monthly quarterly basis, certified by the chief financial officer of Borrowers each such Borrower as being such officer’s good faith estimate of the financial performance of the Borrowers and their respective Subsidiaries such Borrower during the period covered thereby. if and when filed by any Borrower (to the extent applicable), (a) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports; (b) any other filings made by any Borrower with the SEC; and (c) any other information that is provided by any Borrower to its shareholders generally. Provide Lender with each of the documents and information set forth below at the following times in form and substance satisfactory to Lender: Weekly, by the second Business Day of each week, or more frequently if Lender requests (a) a report of unbilled Accounts, detailing those accounts that have now been billed. Monthly (no later than (i) the 20th day of each month, during the 90-day period after the Closing Date, or (ii) 15th day of each month, at all times after the initial 90-day period after the Closing Date), or more frequently if Lender requests (a) a Borrowing Base Certificate; (b) a monthly Account roll-forward, in a format acceptable to Lender in its discretion; (c) a detailed aging of each Borrower’s Accounts, together with a reconciliation to the monthly Account roll-forward and supporting documentation for any reconciling items noted (delivered electronically in an acceptable format); (d) a report of unbilled Accounts; (e) a detailed calculation of those Accounts that are not eligible for the Borrowing Base; (f) a summary aging, by vendor, of each Borrower’s and its Subsidiaries’ accounts payable (delivered electronically in an acceptable format); (g) notice of all claims, offsets, or disputes asserted by Account Debtors with respect to each Borrower’s and its Subsidiaries’ Accounts; (h) a detailed report regarding each Borrower’s and its Subsidiaries’ cash and Cash Equivalents, including an indication of which amounts constitute Qualified Cash; and (i) if requested by Lender, copies of invoices together with credit memos, and corresponding supporting documentation with respect to invoices and credit memos in excess of an amount determined in the sole discretion of Lender from time to time. Monthly (no later than the thirtieth (30th) day of each month) or more frequently if Lender requests (a) a reconciliation of Accounts aging, and trade accounts payable aging of each Borrower to the general ledger and the monthly financial statements, including any book reserves related to each category. Annually, or more frequently, if requested by Lender (a) a detailed list of each Borrower’s and its Subsidiaries’ customers, with address and contact information; and (b) financial statements and tax returns of each Guarantor. Upon request by Lender (a) copies of purchase orders and invoices for Equipment acquired by each Borrower or its Subsidiaries, and (b) such other reports and information as to the Collateral and as to each Loan Party and its Subsidiaries, as Lender may reasonably request. To: Xxxxx Fargo Bank, National Association 0000 XX 0xx Xxxxxx, 00xx Xxxxx Xxxxxxxx, Xxxxxx 00000 Attn: Relationship Manager—Kitara Media, LLC Re: Compliance Certificate dated [ ] Ladies and Gentlemen: Reference is made to that certain Credit and Security Agreement (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) dated as of November 1, 2013, by and between XXXXX FARGO BANK, NATIONAL ASSOCIATION (“Lender”), and KITARA MEDIA, LLC (the “Borrower”). Capitalized terms used in this Compliance Certificate have the meanings set forth in the Credit Agreement unless specifically defined herein. Pursuant to Schedule 6.1 of the Credit Agreement, the undersigned officer of [_____________] hereby certifies that:
1. Attached is the financial information of Borrower and its Subsidiaries which is required to be furnished to Lender pursuant to Section 6.1 of the Credit Agreement for the period ended ____________, __________ (the “Reporting Date”). Such financial information has been prepared in accordance with GAAP [(except for year-end adjustments and the lack of footnotes)]1, and fairly presents in all material respects the financial condition of Borrower and its Subsidiaries.
2. Such officer has reviewed the terms of the Credit Agreement and has made, or caused to be made under his/her supervision, a review in reasonable detail of the transactions and condition of each Borrower and its Subsidiaries during the accounting period covered by the financial statements delivered pursuant to Schedule 6.1 of the Credit Agreement.
3. Such review has not disclosed the existence on and as of the date hereof, and the undersigned does not have knowledge of the existence as of the date hereof, of any event or condition that constitutes a Default or Event of Default.
4. The representations and warranties of each Loan Party and its Subsidiaries and the Guarantors and their Subsidiaries set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date hereof (except to the extent they relate to a specified date).
5. As of the Reporting Date, the Loan Parties and their respective Subsidiaries are in compliance with the applicable covenants contained in Section 7 and Section 8 of the Credit Agreement as demonstrated on Schedule 1 hereof.;
Appears in 1 contract
Termination and Reduction Fees. If
(i) Lender terminates the Revolving Credit Facility after the occurrence of an Event of Default, or (ii) Borrowers terminate the Revolving Credit Facility on a date prior to the Maturity Date, or (iii) Borrowers reduce the Maximum Revolver Amount or if Borrowers and Lender agree to reduce the Maximum Revolver Amount, then Borrowers shall pay Lender as liquidated damages (and not as a penalty) a termination termination, reduction, or reduction fee, as applicable, prepayment fee in an amount equal to a percentage of the Maximum Revolver Credit (in the case of a termination of the Revolving Credit Facility) or , a percentage of the amount of reduction of the Maximum Revolver Amount (in the case of a reduction in the Maximum Revolver Amount) Amount calculated as follows: (A) two percent (2.02.00%) if the termination termination, reduction, or reduction prepayment occurs on or before the first anniversary of the Closing Date; September [ ], 2015 and (B) one percent (1.01.00%) if the termination termination, reduction, or reduction prepayment occurs after September [ ], 2015. If, with the first anniversary consent of the Closing Date and on or before the second anniversary of the Closing Date; and Lender (C) one-half of one percent (0.50%) if the termination or reduction occurs after the second anniversary of the Closing Date. If which consent may be withheld by Lender in its sole discretion), the Credit Facility is refinanced in full by a Xxxxx Fargo Bank Regional Commercial Banking Office transferred to another Subsidiary or operating division of Lender within eighteen (and the Credit Facility is terminated in connection therewith18) on or after the date that is 18 months after the Closing Date, such refinancing transfer shall not be deemed a termination termination, reduction or reduction prepayment resulting in the payment of termination reduction or reduction feesprepayment fees provided that Borrowers agree, at the time of transfer, to the payment of comparable fees in an amount not less than that set forth in this Agreement in the event that any credit facilities extended after such transfer are thereafter terminated early, reduced or prepaid. Deliver to Lender, each of the financial statements, reports, or other items set forth below at the following times in form satisfactory to Lender: as soon as available, but in any event within 25 30 days after the end of each month (a) an unaudited consolidated and consolidating balance sheet, income statement, statement of cash flow, and statement of ownershareholder’s equity with respect to the Borrowers and their respective Subsidiaries during such period and compared to the prior periodperiod and plan, prepared in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes, together with a corresponding discussion and analysis of results from management; and (b) a Compliance Certificate along with the underlying calculations, including the calculations to establish compliance with the financial covenants set forth in Section 8 and certain other covenants under this Agreement, as well as calculations of Liquidity, Excess Availability and Fixed Charge Coverage Ratio. as soon as available, but in any event within 25 45 days after the end of each fiscal quarter (a) an unaudited consolidated and consolidating balance sheet, income statement, statement of cash flow, and statement of shareholder’s equity with respect to the Borrowers and their respective Subsidiaries during such period and compared to the prior period and plan, prepared in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes, together with a comparison corresponding discussion and analysis of actual financial results from management; and (b) a Compliance Certificate along with the Projections for each fiscal quarter underlying calculations, including the calculations to establish compliance with the financial covenants set forth in Section 8 and certain other covenants under this Agreement, as well as calculations of the BorrowersLiquidity, Excess Availability and Fixed Charge Coverage Ratio. as soon as available, but in any event within 120 days after the end of each fiscal year (a) consolidated and consolidating financial statements of Borrowers and their respective Subsidiaries for such fiscal year, audited by Ernst & Young or another independent certified public accountants accountant reasonably acceptable to Lender, prepared in accordance with GAAP, and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, (B) qualification or exception as to the scope of such audit, or (C) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, statement of cash flow, and statement of ownershareholder’s equity and, if prepared, such accountants’ letter to management); provided that Borrowers may satisfy the requirement to deliver the foregoing financial statements by providing a electronic “link” to Lender that provides Lender with complete access to such financial statements and notifying Lender each time that such financial statements are available via such electronic link; and (b) a Compliance Certificate along with the underlying calculations, including the calculations to establish compliance with the financial covenants set forth in Section 8 and certain other covenants under this Agreement, as well as calculations of Liquidity, Excess Availability and Fixed Charge Coverage Ratio. as soon as available, but in any event within thirty (30) days prior to on or before the beginning last day of each of Borrowers’ fiscal years year, (a) copies of Borrowers’ Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Lender, in its Permitted Discretion, for the forthcoming fiscal year, on a monthly basis, certified by the chief financial officer of Borrowers as being such officer’s good faith estimate of the financial performance of the Borrowers and their respective Subsidiaries during the period covered thereby. if and when filed by any Borrower (to the extent applicable)Borrower, (a) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports; (b) any other filings made by any Borrower with the SEC; and (c) any other information that is provided by any Borrower to its shareholders generally. Provide Lender with each of the documents and information set forth below at the following times in form and substance satisfactory to Lender: Weekly, by On or prior to the second Business Day of each week, or more frequently if Lender requests twenty-third (a23rd) a report of unbilled Accounts, detailing those accounts that have now been billed. Monthly (no later than (i) the 20th day of each month, during the 90-day period after the Closing Date, or (ii) 15th day of each month, at all times after the initial 90-day period after the Closing Date), month or more frequently if Lender requests (a) a Borrowing Base Certificate; (b) an Account roll-forward with supporting details to the extent requested by Lender; (c) to the extent requested by Lender, notice of all claims, offsets, or disputes asserted by Account Debtors with respect to each Borrower’s and its Subsidiaries’ Accounts; and (d) to the extent requested by Lender, copies of invoices together with corresponding shipping and delivery documents and credit memos together with corresponding supporting documentation with respect to invoices and credit memos in excess of an amount determined in the sole discretion of Lender from time to time. On or prior to the twenty-third (23rd) day of each month or more frequently if Lender requests (a) to the extent Borrowers have requested that Lender make any Advances on its Inventory, Inventory system/perpetual reports specifying the cost of each Borrower’s and its Subsidiaries’ Inventory, by location and by category, with additional detail showing additions to and deletions therefrom (delivered electronically in an acceptable format, if a Borrower has implemented electronic reporting). On or prior to the twenty-third (23rd) day of each month or more frequently if Lender requests (a) a monthly Account roll-forward, in a format acceptable to Lender in its discretion; (cb) a detailed aging of each Borrower’s Accounts, together with a reconciliation to the monthly Account roll-forward and supporting documentation for any reconciling items noted (delivered electronically in an acceptable format, if a Borrower has implemented electronic reporting); (d) a report of unbilled Accounts; (ec) a detailed calculation of those Accounts that are not eligible for the Borrowing Base; (d) to the extent Borrowers have requested that Lender make any Advances on its Inventory, a detailed Inventory system/perpetual report (delivered electronically in an acceptable format, if a Borrower has implemented electronic reporting); (e) to the extent Borrowers have requested that Lender make any Advances on its Inventory, a detailed calculation of Inventory categories that are not eligible for the Borrowing Base; (f) a summary aging, by vendor, of each Borrower’s and its Subsidiaries’ accounts payable (delivered electronically in an acceptable format, if a Borrower has implemented electronic reporting); and (g) notice of all claims, offsets, or disputes asserted by Account Debtors with respect to each Borrower’s and its Subsidiaries’ Accounts; (h) a detailed report regarding each Borrower’s and its Subsidiaries’ cash and Cash Equivalents, including an indication of which amounts constitute Qualified Cash; and . On or prior to the twenty-third (i) if requested by Lender, copies of invoices together with credit memos, and corresponding supporting documentation with respect to invoices and credit memos in excess of an amount determined in the sole discretion of Lender from time to time. Monthly (no later than the thirtieth (30th23rd) day of each month) month or more frequently if Lender requests (a) a reconciliation of Accounts aging, and trade accounts payable aging aging, and Inventory perpetual of each Borrower to the general ledger and the monthly financial statements, including any book reserves related to each category. Annually, or more frequently, if requested by Lender (a) a detailed list of each Borrower’s and its Subsidiaries’ customers, with address and contact information; and (b) financial statements and tax returns of each Guarantor. Upon request by Lender (a) copies of purchase orders and invoices for Inventory and Equipment acquired by each Borrower or its Subsidiaries, and (b) such other reports and information as to the Collateral and as to each Loan Party and its Subsidiaries, as Lender may reasonably request. To: Xxxxx Fargo Bank, National Association 0000 XX 0xx Xxxxxx, 00xx Xxxxx Xxxxxxxx, Xxxxxx 00000 [ ] Attn: Relationship [Portfolio Manager—Kitara Media, LLC ] Re: Compliance Certificate dated [ ] Ladies and Gentlemen: Reference is made to that certain Amended and Restated Credit and Security Agreement (( as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) dated as of November 1September 24, 20132014, by and between among XXXXX FARGO BANK, NATIONAL ASSOCIATION ASSOCIATION, (“Lender”), INTEGRATED ELECTRICAL SERVICES, INC., a Delaware corporation; IES COMMERCIAL & INDUSTRIAL, LLC, a Delaware limited liability company; IES COMMERCIAL, INC., a Delaware corporation; IES CONSOLIDATION, LLC, a Delaware limited liability company; IES MANAGEMENT, LP, a Texas limited partnership; IES MANAGEMENT ROO, LP, a Texas limited partnership; IES PROPERTIES, INC., a Delaware corporation; IES PURCHASING & MATERIALS, INC., a Delaware corporation; IES RESIDENTIAL, INC., a Delaware corporation; IES SHARED SERVICES, INC., a Delaware corporation; IES TANGIBLE PROPERTIES, INC., a Delaware corporation; INTEGRATED ELECTRICAL FINANCE, INC., a Delaware corporation; IES SUBSIDIARY HOLDINGS, INC., a Delaware corporation; MAGNETECH INDUSTRIAL SERVICES, INC., an Indiana corporation; HK ENGINE COMPONENTS, LLC, an Indiana limited liability company; IES RENEWABLE ENERGY, LLC, a Delaware limited liability company (each, individually a “Borrower”, and KITARA MEDIAcollectively, LLC (the “BorrowerBorrowers”), IES OPERATIONS GROUP, INC., a Delaware corporation and ICS HOLDINGS LLC, an Arizona limited liability company (each, individually a (“Guarantor”), and collectively, the “Guarantors”). Capitalized terms used in this Compliance Certificate have the meanings set forth in the Credit Agreement unless specifically defined herein. Pursuant to Schedule 6.1 of the Credit Agreement, the undersigned officer of [_____________] Parent hereby certifies that:
1. Attached is the financial information of Borrower Borrowers and its their Subsidiaries which is required to be furnished to Lender pursuant to Section 6.1 of the Credit Agreement for the period ended ____________, __________ (the “Reporting Date”). Such financial information has been prepared in accordance with GAAP [(except for year-end adjustments and the lack of footnotes)]1, and fairly presents in all material respects the financial condition of Borrower Borrowers and its their Subsidiaries.
2. Such officer has reviewed the terms of the Credit Agreement and has made, or caused to be made under his/her supervision, a review in reasonable detail of the transactions and condition of each Borrower and its Subsidiaries during the accounting period covered by the financial statements delivered pursuant to Schedule 6.1 of the Credit Agreement.
3. Such review has not disclosed the existence on and as of the date hereof, and the undersigned does not have knowledge of the existence as of the date hereof, of any event or condition that constitutes a Default or Event of Default.. 1 Exclude bracketed language with annual audits
4. The representations and warranties of each Loan Party and its Subsidiaries and the Guarantors and their Subsidiaries set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date hereof (except to the extent they relate to a specified date).
5. Borrowers’ Liquidity, Excess Availability and Fixed Charge Coverage Ratio calculations are demonstrated on Schedule 1 hereof.
6. As of the Reporting Date, the Loan Parties Borrowers and their respective Subsidiaries are in compliance with the applicable covenants contained in Section 7 and Section 8 of the Credit Agreement Agreement, if applicable, as demonstrated on Schedule 1 hereof.
Appears in 1 contract
Samples: Credit and Security Agreement (Integrated Electrical Services Inc)
Termination and Reduction Fees. If
(i) Lender terminates the Revolving Credit Facility after the occurrence of an Event of Default, or (ii) Borrowers terminate the Revolving Credit Facility on a date prior to the Maturity Date, or (iii) Borrowers reduce the Maximum Revolver Amount or if Borrowers and Lender agree to reduce the Maximum Revolver Amount, then Borrowers shall pay Lender as liquidated damages (and not as a penalty) a termination or reduction fee, as applicable, fee in an amount equal to a percentage of the Maximum Revolver Credit (in the case of a termination of the Revolving Credit Facility) or , a percentage of the amount of reduction of the Maximum Revolver Amount (in the case of a reduction in the Maximum Revolver Amount) Amount calculated as follows: (A) two percent (2.02.00%) if the termination or reduction occurs on or before the first anniversary of the Closing Datefirst Advance; and (B) one percent (1.01.00%) if the termination or reduction occurs after the first anniversary of the Closing Date and on or before first Advance. If, with the second anniversary consent of the Closing Date; and Lender (C) one-half of one percent (0.50%) if the termination or reduction occurs after the second anniversary of the Closing Date. If which consent may be withheld by Lender in its sole discretion), the Credit Facility is refinanced in full by a Xxxxx Fargo Bank Regional Commercial Banking Office transferred to another Subsidiary or operating division of Lender within eighteen (and the Credit Facility is terminated in connection therewith18) on or after the date that is 18 months after the Closing Date, such refinancing transfer shall not be deemed a termination or reduction resulting in the payment of termination or reduction feesfees provided that Borrowers agree, at the time of transfer, to the payment of comparable fees in an amount not less than that set forth in this Agreement in the event that any credit facilities extended after such transfer are thereafter terminated early. Deliver to Lender, each of the financial statements, reports, or other items set forth below at the following times in form satisfactory to Lender: as soon as available, but in any event within 25 30 days after the end of each month (a) an unaudited consolidated and consolidating balance sheet, income statement, statement of cash flow, and statement of ownershareholder’s equity with respect to the Borrowers and their respective Subsidiaries during such period and compared to the prior periodperiod and plan, prepared in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes, together with a corresponding discussion and analysis of results from management; and (b) a Compliance Certificate along with the underlying calculations, including the calculations to establish compliance with the financial covenants set forth in Section 8 and certain other covenants under this Agreement, as well as calculations of Liquidity, Excess Availability and Fixed Charge Coverage Ratio. as soon as available, but in any event within 25 45 days after the end of each fiscal quarter (a) an unaudited consolidated and consolidating balance sheet, income statement, statement of cash flow, and statement of shareholder’s equity with respect to the Borrowers and their respective Subsidiaries during such period and compared to the prior period and plan, prepared in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes, together with a comparison corresponding discussion and analysis of actual financial results from management; and (b) a Compliance Certificate along with the Projections for each fiscal quarter underlying calculations, including the calculations to establish compliance with the financial covenants set forth in Section 8 and certain other covenants under this Agreement, as well as calculations of the BorrowersLiquidity, Excess Availability and Fixed Charge Coverage Ratio. as soon as available, but in any event within 120 days after the end of each fiscal year (a) consolidated and consolidating financial statements of Borrowers and their respective Subsidiaries for such fiscal year, audited by Ernst & Young or another independent certified public accountants accountant reasonably acceptable to Lender, prepared in accordance with GAAP, and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, (B) qualification or exception as to the scope of such audit, or (C) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, statement of cash flow, and statement of ownershareholder’s equity and, if prepared, such accountants’ letter to management); provided that Borrowers may satisfy the requirement to deliver the foregoing financial statements by providing a electronic “link” to Lender that provides Lender with complete access to such financial statements and notifying Lender each time that such financial statements are available via such electronic link; and (b) a Compliance Certificate along with the underlying calculations, including the calculations to establish compliance with the financial covenants set forth in Section 8 and certain other covenants under this Agreement, as well as calculations of Liquidity, Excess Availability and Fixed Charge Coverage Ratio. as soon as available, but in any event within thirty (30) days prior to on or before the beginning last day of each of Borrowers’ fiscal years year, (a) copies of Borrowers’ Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Lender, in its Permitted Discretion, for the forthcoming fiscal year, on a monthly basis, certified by the chief financial officer of Borrowers as being such officer’s good faith estimate of the financial performance of the Borrowers and their respective Subsidiaries during the period covered thereby. if and when filed by any Borrower (to the extent applicable)Borrower, (a) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports; (b) any other filings made by any Borrower with the SEC; and (c) any other information that is provided by any Borrower to its shareholders generally. Provide Lender with each of the documents and information set forth below at the following times in form and substance satisfactory to Lender: Weekly, by On or prior to the second Business Day of each week, or more frequently if Lender requests twenty-third (a23rd) a report of unbilled Accounts, detailing those accounts that have now been billed. Monthly (no later than (i) the 20th day of each month, during the 90-day period after the Closing Date, or (ii) 15th day of each month, at all times after the initial 90-day period after the Closing Date), month or more frequently if Lender requests (a) a Borrowing Base Certificate; (b) an Account roll-forward with supporting details to the extent requested by Lender; (c) to the extent requested by Lender, notice of all claims, offsets, or disputes asserted by Account Debtors with respect to each Borrower’s and its Subsidiaries’ Accounts; and (d) to the extent requested by Lender, copies of invoices together with corresponding shipping and delivery documents and credit memos together with corresponding supporting documentation with respect to invoices and credit memos in excess of an amount determined in the sole discretion of Lender from time to time. On or prior to the twenty-third (23rd) day of each month or more frequently if Lender requests (a) to the extent Borrowers have requested that Lender make any Advances on its Inventory, Inventory system/perpetual reports specifying the cost of each Borrower’s and its Subsidiaries’ Inventory, by location and by category, with additional detail showing additions to and deletions therefrom (delivered electronically in an acceptable format, if a Borrower has implemented electronic reporting). On or prior to the twenty-third (23rd) day of each month or more frequently if Lender requests (a) a monthly Account roll-forward, in a format acceptable to Lender in its discretion; (cb) a detailed aging of each Borrower’s Accounts, together with a reconciliation to the monthly Account roll-forward and supporting documentation for any reconciling items noted (delivered electronically in an acceptable format, if a Borrower has implemented electronic reporting); (d) a report of unbilled Accounts; (ec) a detailed calculation of those Accounts that are not eligible for the Borrowing Base; (d) to the extent Borrowers have requested that Lender make any Advances on its Inventory, a detailed Inventory system/perpetual report (delivered electronically in an acceptable format, if a Borrower has implemented electronic reporting); (e) to the extent Borrowers have requested that Lender make any Advances on its Inventory, a detailed calculation of Inventory categories that are not eligible for the Borrowing Base; (f) a summary aging, by vendor, of each Borrower’s and its Subsidiaries’ accounts payable (delivered electronically in an acceptable format, if a Borrower has implemented electronic reporting); and (g) notice of all claims, offsets, or disputes asserted by Account Debtors with respect to each Borrower’s and its Subsidiaries’ Accounts; (h) a detailed report regarding each Borrower’s and its Subsidiaries’ cash and Cash Equivalents, including an indication of which amounts constitute Qualified Cash; and . On or prior to the twenty-third (i) if requested by Lender, copies of invoices together with credit memos, and corresponding supporting documentation with respect to invoices and credit memos in excess of an amount determined in the sole discretion of Lender from time to time. Monthly (no later than the thirtieth (30th23rd) day of each month) month or more frequently if Lender requests (a) a reconciliation of Accounts aging, and trade accounts payable aging aging, and Inventory perpetual of each Borrower to the general ledger and the monthly financial statements, including any book reserves related to each category. Annually, or more frequently, if requested by Lender (a) a detailed list of each Borrower’s and its Subsidiaries’ customers, with address and contact information; and (b) financial statements and tax returns of each Guarantor. Upon request by Lender (a) copies of purchase orders and invoices for Inventory and Equipment acquired by each Borrower or its Subsidiaries, and (b) such other reports and information as to the Collateral and as to each Loan Party and its Subsidiaries, as Lender may reasonably request. To: Xxxxx Fargo Bank, National Association 0000 XX 0xx Xxxxxx, 00xx Xxxxx Xxxxxxxx, Xxxxxx 00000 [ ] Attn: Relationship [Portfolio Manager—Kitara Media, LLC ] Re: Compliance Certificate dated [ ] Ladies and Gentlemen: Reference is made to that certain Credit and Security Agreement (( as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) dated as of November 1August 9, 20132012, by and between among XXXXX FARGO BANK, NATIONAL ASSOCIATION ASSOCIATION, (“Lender”), INTEGRATED ELECTRICAL SERVICES, INC., a Delaware corporation; IES COMMERCIAL & INDUSTRIAL, LLC, a Delaware limited liability company; IES COMMERCIAL, INC., a Delaware corporation; IES CONSOLIDATION, LLC, a Delaware limited liability company; IES MANAGEMENT, LP, a Texas limited partnership; IES MANAGEMENT ROO, LP, a Texas limited partnership; IES PROPERTIES, INC., a Delaware corporation; IES PURCHASING & MATERIALS, INC., a Delaware corporation; IES RESIDENTIAL, INC., a Delaware corporation; IES SHARED SERVICES, INC., a Delaware corporation; IES TANGIBLE PROPERTIES, INC., a Delaware corporation; INTEGRATED ELECTRICAL FINANCE, INC., a Delaware corporation; (each, individually a “Borrower”, and KITARA MEDIAcollectively, LLC (the “BorrowerBorrowers”), IES OPERATIONS GROUP, INC., a Delaware corporation and ICS HOLDINGS LLC, an Arizona limited liability company (each, individually a (“Guarantor”), and collectively, the “Guarantors”). Capitalized terms used in this Compliance Certificate have the meanings set forth in the Credit Agreement unless specifically defined herein. Pursuant to Schedule 6.1 of the Credit Agreement, the undersigned officer of [_____________] Parent hereby certifies that:
1. Attached is the financial information of Borrower Borrowers and its their Subsidiaries which is required to be furnished to Lender pursuant to Section 6.1 of the Credit Agreement for the period ended ____________, __________ (the “Reporting Date”). Such financial information has been prepared in accordance with GAAP [(except for year-end adjustments and the lack of footnotes)]1footnotes)]1 , and fairly presents in all material respects the financial condition of Borrower Borrowers and its their Subsidiaries.
2. Such officer has reviewed the terms of the Credit Agreement and has made, or caused to be made under his/her supervision, a review in reasonable detail of the transactions and condition of each Borrower and its Subsidiaries during the accounting period covered by the financial statements delivered pursuant to Schedule 6.1 of the Credit Agreement.
3. Such review has not disclosed the existence on and as of the date hereof, and the undersigned does not have knowledge of the existence as of the date hereof, of any event or condition that constitutes a Default or Event of Default.
4. The representations and warranties of each Loan Party and its Subsidiaries and the Guarantors and their Subsidiaries set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date hereof (except to the extent they relate to a specified date). 1 Exclude bracketed language with annual audits
5. Borrowers’ Liquidity, Excess Availability and Fixed Charge Coverage Ratio calculations are demonstrated on Schedule 1 hereof.
56. As of the Reporting Date, the Loan Parties Borrowers and their respective Subsidiaries are in compliance with the applicable covenants contained in Section 7 and Section 8 of the Credit Agreement Agreement, if applicable, as demonstrated on Schedule 1 hereof.
Appears in 1 contract
Samples: Credit and Security Agreement (Integrated Electrical Services Inc)
Termination and Reduction Fees. If
(i) Lender terminates the Revolving Credit Facility after the occurrence of an Event of Default, or (ii) Borrowers terminate Borrower terminates the Revolving Credit Facility on a date prior to the Maturity Date, or (iii) Borrowers reduce the Maximum Revolver Amount or if Borrowers and Lender agree to reduce the Maximum Revolver Amount, then Borrowers shall pay Lender as liquidated damages (and not as a penalty) a termination or reduction fee, as applicablethe case may be, in an amount equal to a percentage of the Maximum Revolver Credit (Amount in the case of a termination of the Revolving Credit Facility) or , and a percentage of the amount of reduction of the Maximum Revolver Amount (in the case of a reduction in of the Maximum Revolver Amount) Revolving Credit Facility, as the case may be, calculated as follows: (A) two percent (2.0%) 2.00% if the termination or reduction occurs on or before the first anniversary of the Closing Date; and (B) one percent (1.0%) 1.00% if the termination or reduction occurs after the first anniversary of the Closing Date and but on or before the second anniversary of the Closing Date; and (C) one-half of one percent (0.50%) 0.00% if the termination or reduction occurs after the second anniversary of the Closing Date. If If, with the consent of Lender (which consent may be withheld by Lender in its sole discretion), the Revolving Credit Facility is transferred to or refinanced in full by a Xxxxx Fargo Bank Regional Commercial Banking Office (and the Credit Facility is terminated in connection therewith) on with another Subsidiary or after the date that is 18 months after the Closing Dateoperating division of Lender, such refinancing transfer or refinance shall not be deemed a termination or reduction resulting in the payment of termination or reduction feesfees provided that Borrowers agree, at the time of transfer, to the payment of comparable fees in an amount not less than that set forth in this Agreement in the event that any credit facilities extended after such transfer are thereafter terminated early, reduced or prepaid. US.55515997.06 Deliver to Lender, each of the financial statements, reports, or other items set forth below at the following times in form satisfactory to Lender: as soon as available, but in any event within 25 days after the end of each month month: (a) an unaudited consolidated and consolidating balance sheet, income statement, statement of cash flow, and statement of shareholder’s or owner’s equity with respect to the Borrowers and their respective Subsidiaries during such period and compared to the prior period, prepared in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes, together with a corresponding discussion and analysis of results from management; and (b) a Compliance Certificate along with the underlying calculations, including the calculations to establish compliance with the financial covenants set forth in Section 8 and certain other covenants under this Agreement. as soon as available, but in any event within 25 120 days after the end of each quarter (a) a comparison of actual financial results with the Projections for each fiscal quarter of the Borrowers. as soon as available, but in any event within 120 after the end of each fiscal year year: (a) consolidated and consolidating financial statements of Borrowers and their respective Subsidiaries for such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender, prepared in accordance with GAAP, and certified, without any qualifications (including any (Ai) “going concern” or like qualification or exception, (Bii) qualification or exception as to the scope of such auditaudit (other than references regarding audits performed by other auditors as contemplated by AU Section 543, Part of Audit Performed by Other Independent Auditors, or any successor or similar standard under GAAP), or (Ciii) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, statement of cash flow, and statement of ownershareholder’s equity and, if prepared, such accountants’ letter to management); provided that Borrowers may satisfy the requirement to deliver the foregoing financial statements by providing a electronic “link” to Lender that provides Lender with complete access to such financial statements and notifying Lender each time that such financial statements are available via such electronic link; and (b) a Compliance Certificate along with the underlying calculations, including the calculations to establish compliance with the financial covenants set forth in Section 8 and certain other covenants under this Agreement. as soon as available, but in any event within thirty (30) 30 days prior to before the beginning start of each fiscal year of Borrowers’ fiscal years : (a) copies of Borrowers’ Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Lender, in its Permitted Discretion, Lender for the forthcoming fiscal year, on a monthly basis, certified by the chief financial officer of Borrowers each Borrower as being such officer’s good faith estimate of the financial performance of the Borrowers and their respective Subsidiaries during the period covered thereby. if and when filed or distributed by any Borrower (to the extent applicable), or any other Loan Party: (a) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports; (b) any other filings made by any Borrower or any other Loan Party with the SEC; and (c) any other information that is provided by a Borrower or any Borrower Loan Party to its owners, members or shareholders generally. Provide Lender with each of the documents and information set forth below at the following times in form and substance satisfactory to Lender: Weekly, by the second Business Day of each week, or more frequently if Lender requests (a) a report of unbilled Accounts, detailing those accounts that have now been billed. Monthly (no later than (i) the 20th day of each month, during the 90-day period after the Closing Date, or (ii) 15th day of each month, at all times after the initial 90-day period after the Closing Date), or more frequently if Lender requests (a) a Borrowing Base Certificate; (b) a monthly Account roll-forward, in a format acceptable to Lender in its discretion; (c) a detailed aging of each Borrower’s Accounts, together with a reconciliation to the monthly Account roll-forward and supporting documentation for any reconciling items noted (delivered electronically in an acceptable format); (d) a report of unbilled Accounts; (e) a detailed calculation of those Accounts that are not eligible for the Borrowing Base; (f) a summary aging, by vendor, of each Borrower’s and its Subsidiaries’ accounts payable (delivered electronically in an acceptable format); (g) notice of all claims, offsets, or disputes asserted by Account Debtors with respect to each Borrower’s and its Subsidiaries’ Accounts; (h) a detailed report regarding each Borrower’s and its Subsidiaries’ cash and Cash Equivalents, including an indication of which amounts constitute Qualified Cash; and (i) if requested by Lender, copies of invoices together with credit memos, and corresponding supporting documentation with respect to invoices and credit memos in excess of an amount determined in the sole discretion of Lender from time to time. Monthly (no later than the thirtieth (30th) day of each month) or more frequently if Lender requests (a) a reconciliation of Accounts aging, and trade accounts payable aging of each Borrower to the general ledger and the monthly financial statements, including any book reserves related to each category. Annually, or more frequently, if requested by Lender (a) a detailed list of each Borrower’s and its Subsidiaries’ customers, with address and contact information; and (b) financial statements and tax returns of each Guarantor. Upon request by Lender (a) copies of purchase orders and invoices for Equipment acquired by each Borrower or its Subsidiaries, and (b) such other reports and information as to the Collateral and as to each Loan Party and its Subsidiaries, as Lender may reasonably request. To: Xxxxx Fargo Bank, National Association 0000 XX 0xx Xxxxxx, 00xx Xxxxx Xxxxxxxx, Xxxxxx 00000 Attn: Relationship Manager—Kitara Media, LLC Re: Compliance Certificate dated [ ] Ladies and Gentlemen: Reference is made to that certain Credit and Security Agreement (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) dated as of November 1, 2013, by and between XXXXX FARGO BANK, NATIONAL ASSOCIATION (“Lender”), and KITARA MEDIA, LLC (the “Borrower”). Capitalized terms used in this Compliance Certificate have the meanings set forth in the Credit Agreement unless specifically defined herein. Pursuant to Schedule 6.1 of the Credit Agreement, the undersigned officer of [_____________] hereby certifies that:
1. Attached is the financial information of Borrower and its Subsidiaries which is required to be furnished to Lender pursuant to Section 6.1 of the Credit Agreement for the period ended ____________, __________ (the “Reporting Date”). Such financial information has been prepared in accordance with GAAP [(except for year-end adjustments and the lack of footnotes)]1, and fairly presents in all material respects the financial condition of Borrower and its Subsidiaries.
2. Such officer has reviewed the terms of the Credit Agreement and has made, or caused to be made under his/her supervision, a review in reasonable detail of the transactions and condition of each Borrower and its Subsidiaries during the accounting period covered by the financial statements delivered pursuant to Schedule 6.1 of the Credit Agreement.
3. Such review has not disclosed the existence on and as of the date hereof, and the undersigned does not have knowledge of the existence as of the date hereof, of any event or condition that constitutes a Default or Event of Default.
4. The representations and warranties of each Loan Party and its Subsidiaries and the Guarantors and their Subsidiaries set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date hereof (except to the extent they relate to a specified date).
5. As of the Reporting Date, the Loan Parties and their respective Subsidiaries are in compliance with the applicable covenants contained in Section 7 and Section 8 of the Credit Agreement as demonstrated on Schedule 1 hereof.US.55515997.06
Appears in 1 contract
Samples: Credit and Security Agreement (Orion Energy Systems, Inc.)
Termination and Reduction Fees. If
(a) Notwithstanding the foregoing or any other provision of the Agreement or this Fee Letter to the contrary, the Department agrees not to terminate, permanently reduce or replace the Agreement or the Commitment prior to the Stated Expiration Date, except upon (i) Lender terminates the Revolving Credit Facility after payment by the occurrence Department to the Bank of an Event of Defaultthe Termination Fee or a Reduction Fee, or as described below, (ii) Borrowers terminate the Revolving Credit Facility on a date prior payment by the Department to the Maturity Date, or Bank of all other amounts due and payable under the Agreement and this Fee Letter and (iii) Borrowers reduce the Maximum Revolver Amount or if Borrowers and Lender agree to reduce Department providing the Maximum Revolver Amount, Borrowers shall pay Lender as liquidated damages (and not as a penalty) a termination or reduction fee, as applicable, in an amount equal to a percentage of the Maximum Revolver Credit (in the case of a termination of the Revolving Credit Facility) or a percentage of the amount of reduction of the Maximum Revolver Amount (in the case of a reduction in the Maximum Revolver Amount) calculated as follows: (A) two percent (2.0%) if the termination or reduction occurs on or before the first anniversary of the Closing Date; (B) one percent (1.0%) if the termination or reduction occurs after the first anniversary of the Closing Date and on or before the second anniversary of the Closing Date; and (C) one-half of one percent (0.50%) if the termination or reduction occurs after the second anniversary of the Closing Date. If the Credit Facility is refinanced in full by a Xxxxx Fargo Bank Regional Commercial Banking Office (and the Credit Facility is terminated in connection therewith) on or after the date that is 18 months after the Closing Date, such refinancing shall not be deemed a termination or reduction resulting in the payment of termination or reduction fees. Deliver to Lender, each of the financial statements, reports, or other items set forth below at the following times in form satisfactory to Lender: as soon as available, but in any event within 25 days after the end of each month (a) an unaudited consolidated and consolidating balance sheet, income statement, statement of cash flow, and statement of owner’s equity with respect to the Borrowers and their respective Subsidiaries during such period and compared to the prior period, prepared in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes, together with a corresponding discussion and analysis of results from management; and (b) a Compliance Certificate along with the underlying calculations, including the calculations to establish compliance with the financial covenants set forth in Section 8 and certain other covenants under this Agreement. as soon as available, but in any event within 25 days after the end of each quarter (a) a comparison of actual financial results with the Projections for each fiscal quarter of the Borrowers. as soon as available, but in any event within 120 after the end of each fiscal year (a) consolidated and consolidating financial statements of Borrowers and their respective Subsidiaries for such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender, prepared in accordance with GAAP, and certified, without any qualifications (including any (A) “going concern” or like qualification or exception, (B) qualification or exception as to the scope of such audit, or (C) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, statement of cash flow, and statement of owner’s equity and, if prepared, such accountants’ letter to management); provided that Borrowers may satisfy the requirement to deliver the foregoing financial statements by providing a electronic “link” to Lender that provides Lender with complete access to such financial statements and notifying Lender each time that such financial statements are available via such electronic link; and (b) a Compliance Certificate along with the underlying calculations, including the calculations to establish compliance with the financial covenants set forth in Section 8 and certain other covenants under this Agreement. as soon as available, but in any event within thirty (30) days prior written notice of its intent to terminate the beginning of each of Borrowers’ fiscal years (a) copies of Borrowers’ ProjectionsAgreement and/or terminate or reduce the Commitment; provided, in form and substance (including as to scope and underlying assumptions) satisfactory to Lender, in its Permitted Discretion, for the forthcoming fiscal year, on a monthly basis, certified by the chief financial officer of Borrowers as being that any such officer’s good faith estimate termination of the financial performance of Agreement or the Borrowers and their respective Subsidiaries during the period covered thereby. if and when filed by any Borrower (to the extent applicable), (a) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports; (b) any other filings made by any Borrower with the SEC; and (c) any other information that is provided by any Borrower to its shareholders generally. Provide Lender with each of the documents and information set forth below at the following times in form and substance satisfactory to Lender: Weekly, by the second Business Day of each week, or more frequently if Lender requests (a) a report of unbilled Accounts, detailing those accounts that have now been billed. Monthly (no later than (i) the 20th day of each month, during the 90-day period after the Closing Date, or (ii) 15th day of each month, at all times after the initial 90-day period after the Closing Date), or more frequently if Lender requests (a) a Borrowing Base Certificate; (b) a monthly Account roll-forward, in a format acceptable to Lender in its discretion; (c) a detailed aging of each Borrower’s Accounts, together with a reconciliation to the monthly Account roll-forward and supporting documentation for any reconciling items noted (delivered electronically in an acceptable format); (d) a report of unbilled Accounts; (e) a detailed calculation of those Accounts that are not eligible for the Borrowing Base; (f) a summary aging, by vendor, of each Borrower’s and its Subsidiaries’ accounts payable (delivered electronically in an acceptable format); (g) notice of all claims, offsets, or disputes asserted by Account Debtors with respect to each Borrower’s and its Subsidiaries’ Accounts; (h) a detailed report regarding each Borrower’s and its Subsidiaries’ cash and Cash Equivalents, including an indication of which amounts constitute Qualified Cash; and (i) if requested by Lender, copies of invoices together with credit memos, and corresponding supporting documentation with respect to invoices and credit memos in excess of an amount determined in the sole discretion of Lender from time to time. Monthly (no later than the thirtieth (30th) day of each month) or more frequently if Lender requests (a) a reconciliation of Accounts aging, and trade accounts payable aging of each Borrower to the general ledger and the monthly financial statements, including any book reserves related to each category. Annually, or more frequently, if requested by Lender (a) a detailed list of each Borrower’s and its Subsidiaries’ customers, with address and contact information; and (b) financial statements and tax returns of each Guarantor. Upon request by Lender (a) copies of purchase orders and invoices for Equipment acquired by each Borrower or its Subsidiaries, and (b) such other reports and information as to the Collateral and as to each Loan Party and its Subsidiaries, as Lender may reasonably request. To: Xxxxx Fargo Bank, National Association 0000 XX 0xx Xxxxxx, 00xx Xxxxx Xxxxxxxx, Xxxxxx 00000 Attn: Relationship Manager—Kitara Media, LLC Re: Compliance Certificate dated [ ] Ladies and Gentlemen: Reference is made to that certain Credit and Security Agreement (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) dated as of November 1, 2013, by and between XXXXX FARGO BANK, NATIONAL ASSOCIATION (“Lender”), and KITARA MEDIA, LLC (the “Borrower”). Capitalized terms used in this Compliance Certificate have the meanings set forth in the Credit Agreement unless specifically defined herein. Pursuant to Schedule 6.1 of the Credit Agreement, the undersigned officer of [_____________] hereby certifies that:
1. Attached is the financial information of Borrower and its Subsidiaries which is required to Commitment shall be furnished to Lender pursuant to Section 6.1 of the Credit Agreement for the period ended ____________, __________ (the “Reporting Date”). Such financial information has been prepared in accordance with GAAP [(except for year-end adjustments and the lack of footnotes)]1, and fairly presents in all material respects the financial condition of Borrower and its Subsidiaries.
2. Such officer has reviewed the terms of the Credit Agreement and has made, or caused to be made under his/her supervision, a review in reasonable detail of the transactions and condition of each Borrower and its Subsidiaries during the accounting period covered by the financial statements delivered pursuant to Schedule 6.1 of the Credit Agreement.
3. Such review has not disclosed the existence on and as of the date hereof, and the undersigned does not have knowledge of the existence as of the date hereof, of any event or condition that constitutes a Default or Event of Default.
4. The representations and warranties of each Loan Party and its Subsidiaries and the Guarantors and their Subsidiaries set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date hereof (except to the extent they relate to a specified date).
5. As of the Reporting Date, the Loan Parties and their respective Subsidiaries are in compliance with the applicable covenants contained terms and conditions of the Issuing and Paying Agent Agreement and the Agreement; provided, further, that no Termination Fee shall become payable if the Agreement is terminated or replaced as a result of the Department’s request in writing that the Commitment be terminated as a result of a reduction of the Bank’s senior unsecured short-term ratings below “P-1” by Moody’s, “A-1” by S&P or “F1” by Fitch. The Department agrees that all payments to the Bank referred to in the preceding paragraph shall be made in immediately available funds.
(b) The Department hereby agrees to pay to the Bank a Termination Fee in connection with the termination or replacement of the Commitment by the Department as set forth in Section 7 and 1.5(a) hereof in an amount equal to the difference between (x) the product of (A) the Commitment Fee Rate in effect pursuant to Section 8 1.1 hereof on the date of termination, (B) the Commitment Amount as of the Credit Agreement Effective Date, and (C) a fraction, the numerator of which is equal to the number of days from and including the date of such termination to and including the first anniversary of the Effective Date and the denominator of which is 360 and (y) any amounts previously paid pursuant to Section 1.5(c) hereof (the “Termination Fee”), payable on the date the Commitment is terminated or replaced.
(c) The Department hereby agrees to pay to the Bank a reduction fee in connection with each and every permanent reduction of the Commitment by the Department as demonstrated set forth in Section 1.5(a) hereof in an amount equal to the product of (x) the Commitment Fee Rate in effect pursuant to Section 1.1 hereof on Schedule 1 hereofthe date of such permanent reduction, (y) the difference between the Commitment Amount prior to such permanent reduction (without regard to any reduction of the Commitment Amount subject to reinstatement) and the Commitment Amount after such permanent reduction, and (z) a fraction, the numerator of which is equal to the number of days from and including the date of such permanent reduction to and including the first anniversary of the Effective Date and the denominator of which is 360 (the “Reduction Fee”), payable on the date the Commitment Amount is permanently reduced.
Appears in 1 contract
Samples: Fee Letter
Termination and Reduction Fees. If
(i) Lender terminates the Revolving Credit Facility after the occurrence of an Event of Default, or (ii) Borrowers terminate the Revolving Credit Facility on a date prior to the Maturity Date, or (iii) Borrowers reduce the Maximum Revolver Amount or if Borrowers and Lender agree to reduce the Maximum Revolver Amount, then Borrowers shall pay Lender as liquidated damages (and not as a penalty) a termination or reduction fee, as applicable, fee in an amount equal to a percentage of the Maximum Revolver Credit (Amount in the case of a termination of the Revolving Credit Facility) , or a percentage of the amount of reduction of the Maximum Revolver Amount (in the case of a reduction in the Maximum Revolver Amount) , as the case may be, calculated as follows: (A) two percent (2.02.00%) if the termination or reduction occurs on or before the first anniversary of the Closing Agreement Date; (B) one percent (1.01.00%) if the termination or reduction occurs after the first anniversary of the Closing Date and Agreement Date, but on or before the second anniversary of the Closing Agreement Date; and (C) one-half of one zero percent (0.500.00%) if the termination or reduction occurs after the second anniversary of the Closing Agreement Date. If the Credit Facility is refinanced in full by a Xxxxx Fargo Bank Regional Commercial Banking Office (and the Credit Facility is terminated in connection therewith) on or after the date that is 18 months after the Closing Date, such refinancing Borrowers shall not be deemed a termination or reduction resulting in the payment of termination or reduction fees. Deliver deliver to Lender, Lender each of the financial statements, reports, or other items set forth below at the following times in form satisfactory to Lender: as soon as available, but in any event within 25 days after the end of each month, or, in the case of the last month of each fiscal quarter, within 45 days after the end of such month, (a) an unaudited consolidated and consolidating balance sheet, income statement, statement of cash flow, and statement of owner’s equity with respect to the Borrowers and their respective Subsidiaries during such period and compared to the prior periodperiod and plan, prepared in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes, together with a corresponding discussion and analysis of results from management; and (b) a Compliance Certificate along with the underlying calculations, including the calculations to establish compliance with the financial covenants set forth in Section 8 and certain other covenants under this Agreement. as soon as available, but in any event within 25 120 days after the end of each quarter (a) a comparison of actual financial results with the Projections for each fiscal quarter of the Borrowers. as soon as availableyear, but in any event within 120 after the end of each fiscal year (a) consolidated and consolidating financial statements of Borrowers and their respective Subsidiaries for such fiscal year, audited by independent certified public accountants reasonably acceptable to Lender, prepared in accordance with GAAP, and certified, without any qualifications (including any (Ai) “going concern” or like qualification or exception, (Bii) qualification or exception as to the scope of such audit, or (Ciii) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item), by such accountants to have been prepared in accordance with GAAP (such audited financial statements to include a balance sheet, income statement, statement of cash flow, and statement of owner’s equity and, if prepared, such accountants’ letter to management); provided that Borrowers may satisfy the requirement to deliver the foregoing financial statements by providing a electronic “link” to Lender that provides Lender with complete access to such financial statements and notifying Lender each time that such financial statements are available via such electronic link; and (b) a Compliance Certificate along with the underlying calculations, including the calculations to establish compliance with the financial covenants set forth in Section 8 and certain other covenants under this Agreement. as soon as available, but in any event within thirty (30) 30 days prior to before the beginning start of each of Borrowers’ fiscal years years, (a) copies of Borrowers’ Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Lender, in its Permitted Discretion, for the forthcoming fiscal year, on a monthly basis, certified by the chief financial officer of Borrowers as being such officer’s good faith estimate of the financial performance of the Borrowers and their respective Subsidiaries during the period covered thereby. if and when filed by any Borrower (to Borrower, unless publicly available on the extent applicable)SEC’s website, (a) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports; (b) any other filings made by any Borrower with the SEC; and (c) any other information that is provided by any Borrower to its shareholders generally. Provide Borrowers shall provide Lender with each of the documents and information set forth below at the following times in form and substance satisfactory to Lender: WeeklyMonthly (no later than the 15th day of each month), by or, during any Increased Reporting Period, weekly (on the second first Business Day of each week, or more frequently if Lender requests (a) a report of unbilled Accounts, detailing those accounts that have now been billed. Monthly (no later than (i) the 20th day of each month, during the 90-day period after the Closing Date, or (ii) 15th day of each month, at all times after the initial 90-day period after the Closing Date), or more frequently if Lender requests (a) a Borrowing Base Certificate; (b) an Account roll-forward with supporting details supplied from sales journals, collection journals, credit registers and any other records; (c) notice of all claims, offsets, or disputes asserted by Account Debtors with respect to each Borrower’s and its Subsidiaries’ Accounts; and (d) copies of invoices together with corresponding shipping and delivery documents and credit memos together with corresponding supporting documentation with respect to invoices and credit memos in excess of an amount determined in the sole discretion of Lender from time to time. Monthly (no later than the 15th day of each month) or more frequently if Lender requests (a) a monthly Account roll-forward, in a format acceptable to Lender in its discretion; (cb) a detailed aging of each Borrower’s Accounts, together with a reconciliation to the monthly Account roll-forward and supporting documentation for any reconciling items noted (delivered electronically in an acceptable format, if such Borrower has implemented electronic reporting); (c) a detailed calculation of those Accounts that are not eligible for the Borrowing Base, together with a detailed calculation of Eligible Foreign Accounts and Eligible Export-Related Inventory; (d) a detailed Inventory system/perpetual report specifying the cost of unbilled Accountseach Borrower’s Inventory, by location and by category (delivered electronically in an acceptable format, if such Borrower has implemented electronic reporting); (e) a detailed calculation of those Accounts Inventory categories that are not eligible for the Borrowing Base; (f) a summary aging, by vendor, of each Borrower’s and its Subsidiaries’ accounts payable (delivered electronically in an acceptable format, if such Borrower has implemented electronic reporting); and (g) notice of all claims, offsets, or disputes asserted by Account Debtors with respect to each Borrower’s and its Subsidiaries’ Accounts; (h) a detailed report regarding each Borrower’s and its Subsidiaries’ cash and Cash Equivalents, including an indication of which amounts constitute Qualified Cash; and (i) if requested by Lender, copies of invoices together with credit memos, and corresponding supporting documentation with respect to invoices and credit memos in excess of an amount determined in the sole discretion of Lender from time to time. Monthly (no later than the thirtieth (30th) 30th day of each month) or more frequently if Lender requests (a) a reconciliation of Accounts aging, and trade accounts payable aging aging, and Inventory perpetual of each Borrower to the general ledger and the monthly financial statements, including any book reserves related to each category. Annually, or more frequently, if requested by Lender (a) a detailed list of each Borrower’s and its Subsidiaries’ customers, with address and contact information; and (b) financial statements and tax returns of each Guarantor. Upon request by Lender from time to time (a) copies of purchase orders and invoices for Equipment acquired by each Borrower or its Subsidiaries, and (b) such other reports and information as to the Collateral and as to each Loan Party and its Subsidiaries, Subsidiaries as Lender may reasonably request. To: Xxxxx Wxxxx Fargo Bank, National Association 0000 XX 0xx Xxxxxx1000 Xxxxxxxxx Xxxx, 00xx Xxxxx XxxxxxxxNE - Suite 1600 MAC Code: G0189-60 Axxxxxx, Xxxxxx Xxxxxxx 00000 Attn: Relationship Manager—Kitara Media, LLC Portfolio Manager (Cxxxxxx & Cxxxxxx) Re: Compliance Certificate dated [ ] Ladies and Gentlemen: Reference is made to that certain Credit and Security Agreement (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) dated as of November 1June 25, 2013, 2014 by and between XXXXX among CXXXXXX & CXXXXXX, LTD., CXXXXXX & CXXXXXX DIRECT, LLC, MXXXXXXXXX.XXX, LLC (“Borrowers”) and WXXXX FARGO BANK, NATIONAL ASSOCIATION (“Lender”), and KITARA MEDIA, LLC (the “Borrower”). Capitalized terms used in this Compliance Certificate have the meanings set forth in the Credit Agreement unless specifically defined herein. Pursuant to Schedule 6.1 of the Credit Agreement, the undersigned officer of [_____________] Parent hereby certifies that:
1. Attached is the financial information of Borrower Borrowers and its their Subsidiaries which is required to be furnished to Lender pursuant to Section 6.1 of the Credit Agreement for the period ended ____________, __________ (the “Reporting Date”). Such financial information has been prepared in accordance with GAAP [(except for year-end adjustments and the lack of footnotes)]1GAAP, and fairly presents in all material respects the financial condition of Borrower Borrowers and its their Subsidiaries, subject (in the case of monthly financial information) to customary year-end adjustments and the absence of footnotes.
2. Such officer has reviewed the terms of the Credit Agreement and has made, or caused to be made under his/her supervision, a review in reasonable detail of the transactions and condition of each Borrower and its Subsidiaries during the accounting period covered by the financial statements delivered pursuant to Schedule 6.1 of the Credit Agreement.
3. Such review has not disclosed the existence on and as of the date hereof, and the undersigned does not have knowledge of the existence as of the date hereof, of any event or condition that constitutes a Default or Event of Default.
4. The representations and warranties of each Loan Party and its Subsidiaries and the Guarantors and their Subsidiaries set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects on and as of the date hereof (except to the extent they relate to a specified earlier date).
5. As of the Reporting Date, the Loan Parties Borrowers and their respective Subsidiaries are in compliance with the applicable covenants contained in Section 7 and Section 8 of the Credit Agreement as demonstrated on Schedule 1 hereof.
Appears in 1 contract
Samples: Credit and Security Agreement (Charles & Colvard LTD)
