Financial Statements; Borrowing Base and Other Information. The Borrower Representative will furnish to the Administrative Agent, for distribution to each Lender: (a) Within ninety (90) calendar days after the end of each fiscal year (or, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its annual report on Form 10-K, then such later date as so extended by the SEC (but not to exceed one hundred thirty-five (135) days after the end of the applicable fiscal year)), financial statements of the Company and its Subsidiaries consisting of an audited consolidated balance sheet as of the end of such fiscal year, and related consolidated statements of income, shareholders’ equity and cash flows for the fiscal year then ended, all in reasonable detail and setting forth in comparative form the financial statements as of the end of and for the preceding fiscal year, and certified by independent certified public accountants of nationally recognized standing reasonably satisfactory to the Administrative Agent. The certificate or report of accountants shall be free of any qualification (other than any consistency qualification that may result from a change in the method used to prepare the financial statements as to which such accountants concur) or exception as to the scope of such audit and shall not indicate the occurrence or existence of any event, condition or contingency which would materially impair the prospect of payment or performance of any covenant, agreement or duty of any Loan Party under any of the Loan Documents. (b) For each of the first three fiscal quarters of each fiscal year of the Company, within forty-five (45) calendar days after the end of any such fiscal quarter (or (i) with respect to the fiscal quarters ending May 2, 2020 and August 1, 2020, no later the date by which the Company is required to file its quarterly report on Form 10-Q with the SEC after the close of such fiscal quarter and (ii) with respect to any other fiscal quarter, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its quarterly report on Form 10-Q, such later date as so extended by the SEC (but not to exceed one hundred (100) days after the end of the applicable fiscal quarter)), financial statements of the Company and its Subsidiaries, consisting of a consolidated balance sheet as of the end of such fiscal quarter and related consolidated statements of income, shareholders’ equity and cash flows for the fiscal quarter then ended and the fiscal year through that date, all in reasonable detail and certified (subject to normal year-end audit adjustments and the absence of footnotes) by a Financial Officer of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP, consistently applied, and setting forth in comparative form the respective financial statements for the corresponding date and period in the previous fiscal year. (c) Within thirty (30) days after the end of each fiscal month of the Company, (i) monthly financial statements of the Company and its Subsidiaries, consisting of a consolidated balance sheet and related statement of operations and a report of cash flows, including Capital Expenditures, depreciation and amortization and other significant cash flow items for such fiscal month, in each case, as of the end of and for such fiscal month and the then elapsed portion of the fiscal year, all in reasonable detail and setting forth in comparative form (A) the respective financial statements for the corresponding date and period (or periods) in (or, in the case of the balance sheet, as of the end of) the previous fiscal year and (B) the Projections and (ii) a report, in form reasonably satisfactory to the Administrative Agent, of (A) sales and demand broken down by product segment for the prior fiscal month and (B) store count including store openings and store closings during the prior fiscal month. (d) Concurrently with any delivery of financial statements under clause (a), (b) or (c) above, a Compliance Certificate, which shall (i) when delivered concurrently with the delivery of the financial statements delivered under clause (a) or (b), certify that such financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, (ii) certify as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iii) when delivered concurrently with the delivery of the financial statements delivered under clause (a) or (b), state whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.06 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate, (iv) when delivered concurrently with the delivery of the financial statements delivered under clause (a), include the calculation of Consolidated Excess Cash Flow, (v) include a calculation of Consolidated EBITDA to demonstrate compliance with the covenant set forth in Section 6.13, (vi) describe whether, since the later of the date hereof and the date of the last Compliance Certificate, any Loan Party shall have (A) changed its name as it appears in official filings in the state or province of incorporation or organization, (B) changed its chief executive office, (C) changed the type of entity that it is, (D) changed its organization identification number, if any, issued by its state or province of incorporation or other organization, (E) changed its state or province of incorporation or organization, or (F) acquired, registered or issued any new patents, trademarks or copyrights and whether any material intent-to-use trademarks are no longer “intent-to-use” trademarks, and (vii) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary”. (e) On or before each Borrowing Base Reporting Date, (i) a Borrowing Base Certificate setting forth a computation of the Borrowing Base as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, together with supporting information and any additional reports with respect to the Borrowing Base that the Administrative Agent may reasonably request. (f) On or before each Borrowing Base Reporting Date, the following information as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, all delivered electronically in a text formatted file in form reasonably acceptable to the Administrative Agent: (i) a reasonably detailed aging of the Loan Parties’ (A) Credit Card Accounts, (B) Accounts collected pursuant to the Factoring Agreements and (C) Accounts collected in-house by the Loan Parties; (ii) a schedule detailing the Loan Parties’ Inventory, including a reasonably detailed aging thereof; (iii) a worksheet of calculations prepared by the Loan Parties to determine Eligible Credit Card Accounts and Eligible Inventory, such worksheets detailing the Credit Card Accounts and Inventory excluded from Eligible Credit Card Accounts and Eligible Inventory and the reason for such exclusion; (iv) a reconciliation of the Loan Parties’ Credit Card Accounts and Inventory between (A) the amounts shown in the Loan Parties’ general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (e) above as of such date; and (v) such other information regarding the Collateral or Loan Parties as the Administrative Agent may from time to time reasonably request. (g) Concurrently with any delivery thereof to the members of the IPCo JV, and no less frequently than once per fiscal quarter, all financial statements, other reports and material notices with respect to the IPCo JV. (h) Concurrent with delivery thereof to the ABL Agent or the ABL Lenders, as applicable, any additional (or more frequent) information or reports provided to the ABL Agent or the ABL Lenders pursuant to the ABL Credit Agreement (without duplication of reports delivered under this Agreement). The Borrower Representative shall be deemed to have furnished to the Administrative Agent the financial statements and certificates required to be delivered pursuant to Sections 5.01(a) and (b) and the reports and other material required by Section 5.02(p)(iv) upon the filing of such financial statements or material by the Company through the SEC’s ▇▇▇▇▇ system (or any successor electronic gathering system) or the publication by the Company of such financial statements on its website, so long as such system or website is publicly available; provided that, the Borrower Representative shall, at the reasonable request of the Administrative Agent or any Lender, promptly deliver electronic or paper copies of such filings together all accompanying exhibits, attachments, calculations, or other supporting documentation included with such filing.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrower Representative will furnish to the Administrative Agent, for distribution to each Lender:
(a) Within ninety (90) calendar days after the end of each fiscal year (or, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its annual report on Form 10-K, then such later date as so extended by the SEC (but not to exceed one hundred thirty-five (135) days after the end of the applicable fiscal year)), financial statements of the Company and its Subsidiaries consisting of an audited consolidated balance sheet as of the end of such fiscal year, and related consolidated statements of income, shareholders’ equity and cash flows for the fiscal year then ended, all in reasonable detail and setting forth in comparative form the financial statements as of the end of and for the preceding fiscal year, and certified by independent certified public accountants of nationally recognized standing reasonably satisfactory to the Administrative Agent. The certificate or report of accountants shall be free of any qualification qualifications (other than any consistency qualification that may result from a change in the method used to prepare the financial statements as to which such accountants concur) or exception as to the scope of such audit and shall not indicate the occurrence or existence of any event, condition or contingency which would materially impair the prospect of payment or performance of any covenant, agreement or duty of any Loan Party under any of the Loan Documents.
(b) For each of the first three fiscal quarters of each fiscal year of the Company, within forty-forty- five (45) calendar days after the end of any such fiscal quarter (or (i) with respect to the fiscal quarters ending May 2, 2020 and August 1, 2020, no later the date by which the Company is required to file its quarterly report on Form 10-Q with the SEC after the close of such fiscal quarter and (ii) with respect to any other fiscal quarteror, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its quarterly report on Form 10-Qits
(c) During any Increased Financial Reporting Period, such later date as so extended by the SEC within thirty (but not to exceed one hundred (10030) days after the end of each fiscal month of the applicable fiscal quarter))Company, monthly financial statements of the Company and its Subsidiaries, consisting of a consolidated balance sheet and related statements of operations and cash flows as of the end of and for such fiscal quarter month and related consolidated statements the then elapsed portion of income, shareholders’ equity and cash flows for the fiscal quarter then ended and the fiscal year through that dateyear, all in reasonable detail and certified (subject to normal year-end audit adjustments and the absence of footnotes) by a Financial Officer of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP, consistently applied, and setting forth in comparative form the respective financial statements for the corresponding date and period in the previous fiscal year.
(c) Within thirty (30) days after the end of each fiscal month of the Company, (i) monthly financial statements of the Company and its Subsidiaries, consisting of a consolidated balance sheet and related statement of operations and a report of cash flows, including Capital Expenditures, depreciation and amortization and other significant cash flow items for such fiscal month, in each case, as of the end of and for such fiscal month and the then elapsed portion of the fiscal year, all in reasonable detail and setting forth in comparative form (A) the respective financial statements for the corresponding date and period (or periods) in (or, in the case of the balance sheet, as of the end of) the previous fiscal year and (B) the Projections and (ii) a report, in form reasonably satisfactory to the Administrative Agent, of (A) sales and demand broken down by product segment for the prior fiscal month and (B) store count including store openings and store closings during the prior fiscal monthyear.
(d) Concurrently with any delivery of financial statements under clause (a), (b) or (c) above, a Compliance Certificate, which shall (i) when delivered concurrently with the delivery of the financial statements delivered under clause (ab) or (bc), certify that such financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, (ii) certify as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iii) when delivered concurrently with the delivery of the financial statements delivered under clause (a) or (b), state whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.06 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate, (iv) when delivered concurrently with provide reasonably detailed calculations demonstrating the delivery of the financial statements delivered under clause (a), include the calculation of Consolidated Excess Cash FlowFixed Charge Coverage Ratio, (v) include a calculation of Consolidated EBITDA to demonstrate compliance with the covenant set forth in Section 6.13, (vi) describe whether, since the later of the date hereof hereofClosing Date and the date of the last Compliance Certificate, any Loan Party shall have (A) changed its name as it appears in official filings in the state or province of incorporation or organization, (B) changed its chief executive office, (C) changed the type of entity that it is, (D) changed its organization identification number, if any, issued by its state or province of incorporation or other organization, (E) changed its state or province of incorporation or organization, or (F) acquired, registered or issued any new patents, trademarks or copyrights and whether any material intent-to-use trademarks are no longer “intent-to-use” trademarks, or (G) closed any store location, and (viivi) certifying certify a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary”.
(e) On or before each Borrowing Base Reporting Date, (i) a Borrowing Base Certificate setting forth a computation of the Borrowing Base as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, together with supporting information and any additional reports with respect to the Borrowing Base that the Administrative Agent may reasonably request.
(f) On or before each Borrowing Base Reporting Date, the following information as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, all delivered electronically in a text formatted file in form reasonably acceptable to the Administrative Agent:
(i) a reasonably detailed aging of the Loan Parties’ (A) Credit Card Accounts and other Accounts, (B) Accounts collected pursuant to the Factoring Agreements and (C) Accounts collected in-house by the Loan Parties;
; (ii) a schedule detailing the Loan Parties’ Inventory, including ; (iii) a reasonably detailed aging thereof;
accounts payable aging; (iiiiv) a worksheet of calculations prepared by the Loan Parties to determine Eligible Credit Card Accounts Accounts, Eligible Trade Accounts, Eligible Inventory, Eligible Consigned Inventory, and Eligible In-Transit Inventory, such worksheets detailing the Credit Card Accounts, other Accounts and Inventory excluded from Eligible Credit Card Accounts Accounts, Eligible Trade Accounts, Eligible Inventory, Eligible Consigned Inventory, and Eligible In-Transit Inventory and the reason for such exclusion;
; (ivv) a reconciliation of the Loan Parties’ Credit Card Accounts, other Accounts and Inventory between (A) the amounts shown in the Loan Parties’ general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (e) above as of such date; and
and (vvi) such other information regarding the Collateral or Loan Parties as the Administrative Agent may from time to time reasonably request.
. (g) Concurrently Concurrent with any delivery thereof field exam permitted under Section 5.07 (or at such other times as agreed upon by the Administrative Agent and the Company), the Borrower Representative shall provide notice to the members Administrative Agent of any removal or addition of any credit card issuer or credit card processor to the IPCo JVextent that (i) in the case of a removal, Credit Card Accounts of such credit card issuer or credit card processor were included in any previous Borrowing Base or (ii) in the case of an addition, the Borrower Representative desires to include the Credit Card Accounts of such credit card issuer or credit card processor in the Borrowing Base, and no less frequently than once per fiscal quarterconcurrently with any such notice of an addition, all financial statementsthe Company shall provide to the Administrative Agent (A) evidence reasonably satisfactory to the Administrative Agent that a Credit Card Notification shall have been delivered to such credit card issuer or credit card processor, other reports (B) a true and material notices complete copy of each Credit Card Agreement with respect to thereto, together with all material amendments, waivers and other modifications thereto, and (C) such other information with respect thereto as may be reasonably requested by the IPCo JV.
(h) Concurrent Administrative Agent; for the avoidance of doubt, unless otherwise agreed by the Administrative Agent, no Credit Card Accounts of an added credit card issuer or credit card processor may be included in the Borrowing Base until a field exam with delivery thereof to the ABL Agent or the ABL Lenders, as applicable, any additional (or more frequent) information or reports provided to the ABL Agent or the ABL Lenders pursuant to the ABL Credit Agreement (without duplication of reports delivered under this Agreement)respect thereto has been completed. The Borrower Representative shall be deemed to have furnished to the Administrative Agent the financial statements and certificates required to be delivered pursuant to Sections 5.01(a) and (b) and the reports and other material required by Section 5.02(p)(iv) upon the filing of such financial statements or material by the Company through the SEC’s ▇▇▇▇▇ system (or any successor electronic gathering system) or the publication by the Company of such financial statements on its website, so long as such system or website is publicly available; provided that, the Borrower Representative shall, at the reasonable request of the Administrative Agent or any Lender, promptly deliver electronic or paper copies of such filings together all accompanying exhibits, attachments, calculations, or other supporting documentation included with such filing.the
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrower Representative will furnish to the Administrative Agent, for distribution to each Lender:
(a) Within ninety (90) calendar days after the end of each fiscal year (or, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its annual report on Form 10-K, then such later date as so extended by the SEC (but not to exceed one hundred thirty-five (135) days after the end of the applicable fiscal year)), financial statements of the Company and its Subsidiaries consisting of an audited consolidated balance sheet as of the end of such fiscal year, and related consolidated statements of income, shareholders’ equity and cash flows for the fiscal year then ended, all in reasonable detail and setting forth in comparative form the financial statements as of the end of and for the preceding fiscal year, and certified by independent certified public accountants of nationally recognized standing reasonably satisfactory to the Administrative Agent. The certificate or report of accountants shall be free of any qualification qualifications (other than any consistency qualification that may result from a change in the method used to prepare the financial statements as to which such accountants concur) or exception as to the scope of such audit and shall not indicate the occurrence or existence of any event, condition or contingency which would materially impair the prospect of payment or performance of any covenant, agreement or duty of any Loan Party under any of the Loan Documents.
(b) For each of the first three fiscal quarters of each fiscal year of the Company, within forty-forty- five (45) calendar days after the end of any such fiscal quarter (or (i) with respect to the fiscal quarters ending May 2, 2020 and August 1, 2020, no later the date by which the Company is required to file its quarterly report on Form 10-Q with the SEC after the close of such fiscal quarter and (ii) with respect to any other fiscal quarteror, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its quarterly report on Form 10-Q, such later date as so extended by the SEC (but not to exceed one hundred (100) days after the end of the applicable fiscal quarter)), financial statements of the Company and its
(c) During any Increased Financial Reporting Period, within thirty (30) days after the end of each fiscal month of the Company, monthly financial statements of the Company and its Subsidiaries, consisting of a consolidated balance sheet and related statements of operations and cash flows as of the end of and for such fiscal quarter month and related consolidated statements the then elapsed portion of income, shareholders’ equity and cash flows for the fiscal quarter then ended and the fiscal year through that dateyear, all in reasonable detail and certified (subject to normal year-end audit adjustments and the absence of footnotes) by a Financial Officer of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP, consistently applied, and setting forth in comparative form the respective financial statements for the corresponding date and period in the previous fiscal year.
(c) Within thirty (30) days after the end of each fiscal month of the Company, (i) monthly financial statements of the Company and its Subsidiaries, consisting of a consolidated balance sheet and related statement of operations and a report of cash flows, including Capital Expenditures, depreciation and amortization and other significant cash flow items for such fiscal month, in each case, as of the end of and for such fiscal month and the then elapsed portion of the fiscal year, all in reasonable detail and setting forth in comparative form (A) the respective financial statements for the corresponding date and period (or periods) in (or, in the case of the balance sheet, as of the end of) the previous fiscal year and (B) the Projections and (ii) a report, in form reasonably satisfactory to the Administrative Agent, of (A) sales and demand broken down by product segment for the prior fiscal month and (B) store count including store openings and store closings during the prior fiscal monthyear.
(d) Concurrently with any delivery of financial statements under clause (a), (b) or (c) above, a Compliance Certificate, which shall (i) when delivered concurrently with the delivery of the financial statements delivered under clause (ab) or (bc), certify that such financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-year- end audit adjustments and the absence of footnotes, (ii) certify as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iii) when delivered concurrently with the delivery of the financial statements delivered under clause (a) or (b), state whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.06 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate, (iv) when delivered concurrently with provide reasonably detailed calculations demonstrating the delivery of the financial statements delivered under clause (a), include the calculation of Consolidated Excess Cash FlowFixed Charge Coverage Ratio, (v) include a calculation of Consolidated EBITDA to demonstrate compliance with the covenant set forth in Section 6.13, (vi) describe whether, since the later of the date hereof Closing Date and the date of the last Compliance Certificate, any Loan Party shall have (A) changed its name as it appears in official filings in the state or province of incorporation or organization, (B) changed its chief executive office, (C) changed the type of entity that it is, (D) changed its organization identification number, if any, issued by its state or province of incorporation or other organization, (E) changed its state or province of incorporation or organization, or (F) acquired, registered or issued any new patents, trademarks or copyrights and whether any material intent-to-use trademarks are no longer “intent-to-use” trademarks, or (G) closed any store location, and (viivi) certifying certify a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary”.
(e) On or before each Borrowing Base Reporting Date, (i) a Borrowing Base Certificate setting forth a computation of the Borrowing Base as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, together with supporting information and any additional reports with respect to the Borrowing Base that the Administrative Agent may reasonably request.
(f) On or before each Borrowing Base Reporting Date, the following information as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, all delivered electronically in a text formatted file in form reasonably acceptable to the Administrative Agent:
122 (i) a reasonably detailed aging of the Loan Parties’ (A) Credit Card Accounts and other Accounts, (B) Accounts collected pursuant to the Factoring Agreements and (C) Accounts collected in-house by the Loan Parties;
; (ii) a schedule detailing the Loan Parties’ Inventory, including ; (iii) a reasonably detailed aging thereof;
accounts payable aging; (iiiiv) a worksheet of calculations prepared by the Loan Parties to determine Eligible Credit Card Accounts Accounts, Eligible Trade Accounts, Eligible Inventory, Eligible Consigned Inventory, and Eligible In-Transit Inventory, such worksheets detailing the Credit Card Accounts, other Accounts and Inventory excluded from Eligible Credit Card Accounts Accounts, Eligible Trade Accounts, Eligible Inventory, Eligible Consigned Inventory, and Eligible In-Transit Inventory and the reason for such exclusion;
; (ivv) a reconciliation of the Loan Parties’ Credit Card Accounts, other Accounts and Inventory between (A) the amounts shown in the Loan Parties’ general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (e) above as of such date; and
and (vvi) such other information regarding the Collateral or Loan Parties as the Administrative Agent may from time to time reasonably request.
. (g) Concurrent with any field exam permitted under Section 5.07 (or at such other times as agreed upon by the Administrative Agent and the Company), the Borrower Representative shall provide notice to the Administrative Agent of any removal or addition of any credit card issuer or credit card processor to the extent that (i) in the case of a removal, Credit Card Accounts of such credit card issuer or credit card processor were included in any previous Borrowing Base or (ii) in the case of an addition, the Borrower Representative desires to include the Credit Card Accounts of such credit card issuer or credit card processor in the Borrowing Base, and concurrently with any such notice of an addition, the Company shall provide to the Administrative Agent (A) evidence reasonably satisfactory to the Administrative Agent that a Credit Card Notification shall have been delivered to such credit card issuer or credit card processor, (B) a true and complete copy of each Credit Card Agreement with respect thereto, together with all material amendments, waivers and other modifications thereto, and (C) such other information with respect thereto as may be reasonably requested by the Administrative Agent; for the avoidance of doubt, unless otherwise agreed by the Administrative Agent, no Credit Card Accounts of an added credit card issuer or credit card processor may be included in the Borrowing Base until a field exam with respect thereto has been completed. (h) Concurrently with any delivery thereof to the members of the IPCo JV, and no less frequently than once per fiscal quarter, all financial statements, other reports and material notices with respect to the IPCo JV.
(hi) Concurrent with delivery thereof to the ABL Term Agent or the ABL Term Lenders, as applicable, any additional (or more frequent) information or reports provided to the ABL Term Agent or the ABL Term Lenders pursuant to the ABL Term Credit Agreement (without duplication of reports delivered under this Agreement). The Borrower Representative shall be deemed to have furnished to the Administrative Agent the financial statements and certificates required to be delivered pursuant to Sections 5.01(a) and (b) and the reports and other material required by Section 5.02(p)(iv) upon the filing of such financial statements or material by the Company through the SEC’s ▇▇▇▇▇ system (or any successor electronic gathering system) or the publication by the Company of such financial statements on its website, so long as such system or website is publicly available; provided that, the Borrower Representative shall, at the reasonable request of the Administrative Agent or any Lender, promptly deliver electronic or paper copies of such filings together all accompanying exhibits, attachments, calculations, or other supporting documentation included with such filing.)
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrower Representative Borrowers will furnish to the Administrative Agent, for distribution to Agent and each Lender:
(a) Within within ninety (90) calendar days after the end of each fiscal year of the Company, the Specified Audited Annual Financial Statements;
(or, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its annual report on Form 10-K, then such later date as so extended by the SEC (but not to exceed one hundred thirtyb) within forty-five (13545) days after the end of the applicable fiscal year)), financial statements of the Company and its Subsidiaries consisting of an audited consolidated balance sheet as of the end of such fiscal year, and related consolidated statements of income, shareholders’ equity and cash flows for the fiscal year then ended, all in reasonable detail and setting forth in comparative form the financial statements as of the end of and for the preceding fiscal year, and certified by independent certified public accountants of nationally recognized standing reasonably satisfactory to the Administrative Agent. The certificate or report of accountants shall be free of any qualification (other than any consistency qualification that may result from a change in the method used to prepare the financial statements as to which such accountants concur) or exception as to the scope of such audit and shall not indicate the occurrence or existence of any event, condition or contingency which would materially impair the prospect of payment or performance of any covenant, agreement or duty of any Loan Party under any of the Loan Documents.
(b) For each of the first three fiscal quarters of each fiscal year of the Company, within forty-five (45) calendar days after the end of any such fiscal quarter (or (i) with respect to the fiscal quarters ending May 2, 2020 and August 1, 2020, no later the date by which the Company is required to file its quarterly report on Form 10-Q with the SEC after the close of such fiscal quarter and (ii) with respect to any other fiscal quarter, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its quarterly report on Form 10-Q, such later date as so extended by the SEC (but not to exceed one hundred (100) days after the end of the applicable fiscal quarter)), financial statements of the Company and its Subsidiaries, consisting of a consolidated balance sheet as of the end of such fiscal quarter and related consolidated statements of income, shareholders’ equity and cash flows for the fiscal quarter then ended and the fiscal year through that date, all in reasonable detail and certified (subject to normal year-end audit adjustments and the absence of footnotes) by a Specified Quarterly Financial Officer of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP, consistently applied, and setting forth in comparative form the respective financial statements for the corresponding date and period in the previous fiscal year.Statements;
(c) Within during any Increased Reporting Period, within thirty (30) days after the end of each fiscal month of the Company, Company (i) monthly financial statements of beginning with the Company and its Subsidiaries, consisting of a consolidated balance sheet and related statement of operations and a report of cash flows, including Capital Expenditures, depreciation and amortization and other significant cash flow items for such fiscal month, in each case, as of the end of and for such first fiscal month and ending after such Increased Reporting Period commences), the then elapsed portion of the fiscal year, all in reasonable detail and setting forth in comparative form (A) the respective financial statements for the corresponding date and period (or periods) in (or, in the case of the balance sheet, as of the end of) the previous fiscal year and (B) the Projections and (ii) a report, in form reasonably satisfactory to the Administrative Agent, of (A) sales and demand broken down by product segment for the prior fiscal month and (B) store count including store openings and store closings during the prior fiscal month.Specified Monthly Financial Statements; NAI-1514693629v12 95
(d) Concurrently concurrently with any delivery of financial statements under clause (a), (b) or (c) above, a Compliance Certificate, which shall certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit C (i) when delivered concurrently with certifying, in the delivery case of the financial statements delivered under clause (ab) or (bc), certify that such financial statements present fairly as to the matters described in all material respects the financial condition and results definitions of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedSpecified Quarterly Financial Statements or Specified Monthly Financial Statements, subject to normal year-end audit adjustments and the absence of footnotesas applicable, (ii) certify certifying as to whether a Default has occurred and is continuing and, if a Default has occurredoccurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iii) when delivered concurrently with the delivery setting forth reasonably detailed calculations of the financial statements delivered under clause Fixed Charge Coverage Ratio (awhether or not required to be tested pursuant to Section 6.12) or and, if applicable, demonstrating compliance with Section 6.12, and (b), state iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.06 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate, (iv) when delivered concurrently with the delivery of the financial statements delivered under clause (a), include the calculation of Consolidated Excess Cash Flow, (v) include a calculation of Consolidated EBITDA to demonstrate compliance with the covenant set forth in Section 6.13, (vi) describe whether, since the later of the date hereof and the date of the last Compliance Certificate, any Loan Party shall have (A) changed its name as it appears in official filings in the state or province of incorporation or organization, (B) changed its chief executive office, (C) changed the type of entity that it is, (D) changed its organization identification number, if any, issued by its state or province of incorporation or other organization, (E) changed its state or province of incorporation or organization, or (F) acquired, registered or issued any new patents, trademarks or copyrights and whether any material intent-to-use trademarks are no longer “intent-to-use” trademarks, and (vii) certifying a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary”.;
(e) On as soon as available but in any event no later than the end of, and no earlier than 30 days prior to the end of, each fiscal year of the Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and cash flow statement) of the Company and its Subsidiaries for each quarter of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to the Administrative Agent;
(f) on or before each Borrowing Base Reporting Date, (i) as of the period then ended, a Borrowing Base Certificate setting forth and supporting information in connection therewith (including, in respect of any Borrowing Base Certificate delivered for a computation month or week which is also the end of any fiscal quarter of the Borrowing Base Company, a calculation of Average Quarterly Availability for such quarter then ended and an indication of what the Applicable Commitment Fee Rate is as a result of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, Average Quarterly Availability) together with supporting information and any additional reports with respect to the Borrowing Base that as the Administrative Agent may reasonably request.; provided, however, that during any Increased Reporting Period (i) if the Borrower does not have the information to calculate the actual amount of Additions, Deductions and Collateral Ineligibles (as such terms are used in the Borrowing Base Certificate) with respect to the gross Accounts set forth in a weekly Borrowing Base, the Borrower may submit a Borrowing Base Certificate utilizing amounts for such items which shall be based upon percentages of Additions, Deductions and Collateral Ineligibles (determined in relation to the gross Accounts) in each case reflected on the most recently delivered monthly Borrowing Base Certificate (whether delivered with respect to a period prior to such Increased Reporting Period or pursuant to clause (ii) below); provided further, that once the Borrower has determined the actual amounts of Additions, Deductions and Collateral Ineligibles (as such terms are used in the Borrowing Base Certificate) with respect to the gross Accounts, it shall update the most recently delivered Borrowing Base Certificate within five (5) Business Days thereof and (ii) for each fiscal month, the Borrower shall also be required to deliver a Borrowing Base Certificate within twenty (20) Business Days after the end of such fiscal month, which Borrowing Base Certificate shall use actual amounts of Additions, Deductions and Collateral Ineligibles;
(fg) On on or before each Borrowing Base Reporting Date, the following information as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relatesperiod then ended, all delivered electronically in a text formatted file acceptable to the Administrative Agent: NAI-1514693629v12 96
(i) a detailed aging of the Borrowers’ Accounts, including all invoices aged by invoice date and due date (with an explanation of the terms offered), prepared in form a manner reasonably acceptable to the Administrative Agent:
(i) , together with a reasonably detailed aging of summary specifying the Loan Parties’ (A) Credit Card Accountsname, (B) Accounts collected pursuant to the Factoring Agreements address, and (C) Accounts collected in-house by the Loan Partiesbalance due for each Account Debtor;
(ii) a schedule detailing the Loan Parties’ Inventory, including a reasonably detailed aging thereof;
(iii) a worksheet of calculations prepared by the Loan Parties Borrowers to determine Eligible Credit Card Accounts and Eligible InventoryAccounts, such worksheets detailing the Credit Card Accounts and Inventory excluded from Eligible Credit Card Accounts and Eligible Inventory and the reason for such exclusion; provided, that during any Increased Reporting Period, the Borrower shall only be required to provide the information in this clause (ii) on a monthly basis;
(iviii) a reconciliation of the Loan PartiesBorrowers’ Credit Card Accounts and Inventory between (A) the amounts shown in the Loan PartiesBorrowers’ general ledger and financial statements and the reports delivered pursuant to clauses clause (i) and (ii) above and (B) the amounts and dates shown in the reports delivered pursuant to clauses clause (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (eg) above as of such date;
(iv) a reconciliation of the loan balance per the Borrowers’ general ledger to the loan balance under this Agreement; and
(v) a daily schedule of cash receipts from Eligible Accounts.
(h) on or before each Borrowing Base Reporting Date, as of the month most recently ended, a schedule and aging of the Borrowers’ accounts payable, delivered electronically in a text formatted file reasonably acceptable to the Administrative Agent;
(i) within 45 days after the end of each fiscal year and at such other information regarding the Collateral or Loan Parties times as the Administrative Agent may from time to time reasonably request.
(g) Concurrently with any delivery thereof to , an updated customer list for each Borrower and its Subsidiaries, which list shall state the members of the IPCo JVcustomer’s name, mailing address and no less frequently than once per fiscal quarterphone number, all financial statements, other reports and material notices with respect to the IPCo JV.
(h) Concurrent with delivery thereof to the ABL Agent or the ABL Lenders, as applicable, any additional (or more frequent) information or reports provided to the ABL Agent or the ABL Lenders pursuant to the ABL Credit Agreement (without duplication of reports delivered under this Agreement). The Borrower Representative shall be deemed to have furnished electronically in a text formatted file acceptable to the Administrative Agent and certified as true and correct by a Financial Officer of the financial statements Borrower Representative;
(j) promptly upon the Administrative Agent’s request:
(i) copies of invoices issued by the Borrowers in connection with any Accounts, credit memos, shipping and certificates required to delivery documents, and other information related thereto; and
(ii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(k) at such other times as may be delivered pursuant to Sections 5.01(areasonably requested by the Administrative Agent, as of the period then ended, the Borrowers’ sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journal; NAI-1514693629v12 97
(bl) and within five days after the reports and other material required by Section 5.02(p)(iv) upon the filing first Business Day of such financial statements or material by the Company through the SEC’s ▇▇▇▇▇ system (or any successor electronic gathering system) each March, a certificate of good standing or the publication substantive equivalent available in the jurisdiction of incorporation, formation or organization for each Loan Party from the appropriate governmental officer in such jurisdiction;
(m) promptly after any request therefor by the Company of such financial statements on its website, so long as such system or website is publicly available; provided that, the Borrower Representative shall, at the reasonable request of the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that any Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that any Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if a Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the applicable Borrower or the applicable ERISA Affiliate shall promptly deliver electronic make a request for such documents and notices from such administrator or paper sponsor and shall provide copies of such filings together all accompanying exhibitsdocuments and notices promptly after receipt thereof; and
(n) promptly following any request therefor, attachments(i) such other information regarding the operations, calculationschanges in ownership of Equity Interests, business affairs and financial condition of Parent (to the extent not readily available on the website of the SEC at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇), Intermediate Holdco, any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request, and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation. The Company represents and warrants that it, its controlling Person and any Subsidiary, in each case, if any, either (i) has no registered or publicly traded securities outstanding, or (ii) files its financial statements with the SEC and/or makes its financial statements available to potential holders of its 144A securities, and, accordingly, the Company hereby (i) authorizes the Administrative Agent to make the financial statements to be provided under Section 5.01(a) and (b) above (collectively or individually, as the context requires, the “Financial Statements”), along with the Loan Documents, available to Public-▇▇▇▇▇▇ and (ii) agree that at the time such Financial Statements are provided hereunder, they shall already have been made available to holders of its securities. The Company will not request that any other supporting documentation included with material be posted to Public-▇▇▇▇▇▇ without expressly representing and warranting to the Administrative Agent in writing that such filingmaterials do not constitute material non-public information within the meaning of the federal securities laws or that the Company has no outstanding publicly traded securities, including 144A securities.
Appears in 1 contract
Sources: Credit Agreement (Opko Health, Inc.)
Financial Statements; Borrowing Base and Other Information. The Borrower Representative will furnish to the Administrative Agent, for distribution to each Lender:
(a) Within ninety (90) calendar days after the end of each fiscal year (or, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its annual report on Form 10-K, then such later date as so extended by the SEC (but not to exceed one hundred thirty-five (135) days after the end of the applicable fiscal year)), financial statements of the Company and its Subsidiaries consisting of an audited consolidated balance sheet as of the end of such fiscal year, and related consolidated statements of income, shareholders’ equity and cash flows for the fiscal year then ended, all in reasonable detail and setting forth in comparative form the financial statements as of the end of and for the preceding fiscal year, and certified by independent certified public accountants of nationally recognized standing reasonably satisfactory to the Administrative Agent. The certificate or report of accountants shall be free of any qualification qualifications (other than any consistency qualification that may result from a change in the method used to prepare the financial statements as to which such accountants concur) or exception as to the scope of such audit and shall not indicate the occurrence or existence of any event, condition or contingency which would materially impair the prospect of payment or performance of any covenant, agreement or duty of any Loan Party under any of the Loan Documents.
(b) For each of the first three fiscal quarters of each fiscal year of the Company, within forty-five (45) calendar days after the end of any such fiscal quarter (or (i) with respect to the fiscal quarters ending May 2, 2020 and August 1, 2020, no later the date by which the Company is required to file its quarterly report on Form 10-Q with the SEC after the close of such fiscal quarter and (ii) with respect to any other fiscal quarteror, if the Company notifies the Administrative Agent that the SEC has extended the applicable deadline for the Company to file its quarterly report on Form 10-Q, such later date as so extended by the SEC (but not to exceed one hundred (100) days after the end of the applicable fiscal quarter)), financial statements of the Company and its Subsidiaries, consisting of a consolidated balance sheet as of the end of such fiscal quarter and related consolidated statements of income, shareholders’ equity and cash flows for the fiscal quarter then ended and the fiscal year through that date, all in reasonable detail and certified (subject to normal year-end audit adjustments and the absence of footnotes) by a Financial Officer of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP, consistently applied, and setting forth in comparative form the respective financial statements for the corresponding date and period in the previous fiscal year.
(c) Within During any Increased Financial Reporting Period, within thirty (30) days after the end of each fiscal month of the Company, (i) monthly financial statements of the Company and its Subsidiaries, consisting of a consolidated balance sheet and related statement statements of operations and a report of cash flows, including Capital Expenditures, depreciation and amortization and other significant cash flow items for such fiscal month, in each case, flows as of the end of and for such fiscal month and the then elapsed portion of the fiscal year, all in reasonable detail and certified (subject to normal year-end audit adjustments and the absence of footnotes) by a Financial Officer of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP, consistently applied, and setting forth in comparative form (A) the respective financial statements for the corresponding date and period (or periods) in (or, in the case of the balance sheet, as of the end of) the previous fiscal year and (B) the Projections and (ii) a report, in form reasonably satisfactory to the Administrative Agent, of (A) sales and demand broken down by product segment for the prior fiscal month and (B) store count including store openings and store closings during the prior fiscal monthyear.
(d) Concurrently with any delivery of financial statements under clause (a), (b) or (c) above, a Compliance Certificate, which shall (i) when delivered concurrently with the delivery of the financial statements delivered under clause (ab) or (bc), certify that such financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, (ii) certify as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iii) when delivered concurrently with the delivery of the financial statements delivered under clause (a) or (b), state whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.06 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate, (iv) when delivered concurrently provide reasonably detailed calculations demonstrating compliance with the delivery Section 6.12 (including, irrespective of the financial statements delivered under clause (awhether a Covenant Testing Event is then in effect, reasonably detailed calculations with respect to Consolidated Net Leverage Ratio for such applicable period), include the calculation of Consolidated Excess Cash Flow, (v) include a calculation of Consolidated EBITDA to demonstrate compliance with the covenant set forth in Section 6.13, (vi) describe whether, since the later of the date hereof Closing Date and the date of the last Compliance Certificate, any Loan Party shall have (A) changed its name as it appears in official filings in the state or province of incorporation or organization, (B) changed its chief executive office, (C) changed the type of entity that it is, (D) changed its organization identification number, if any, issued by its state or province of incorporation or other organization, (E) changed its state or province of incorporation or organization, or (F) acquired, registered or issued any new patents, trademarks or copyrights and whether any material intent-to-use trademarks are no longer “intent-to-use” trademarks, or (G) or closed any store location, and (viivi) certifying certify a list of names of all Immaterial Subsidiaries, that each Subsidiary set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary”.
(e) On or before each Borrowing Base Reporting Date, (i) a Borrowing Base Certificate setting forth a computation of the Borrowing Base as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, together with supporting information and any additional reports with respect to the Borrowing Base that the Administrative Agent may reasonably request.
(f) On or before each Borrowing Base Reporting Date, the following information as of the most recently ended fiscal month or week, as applicable, to which such Borrowing Base Reporting Date relates, all delivered electronically in a text formatted file in form reasonably acceptable to the Administrative Agent:
(i) a reasonably detailed aging of the Loan Parties’ (A) Credit Card Accounts and other Accounts, (B) Accounts collected pursuant to the Factoring Agreements and (C) Accounts collected in-house by the Loan Parties;
(ii) a schedule detailing the Loan Parties’ Inventory, including a reasonably detailed aging thereof;
(iii) a reasonably detailed accounts payable aging;
(iv) a worksheet of calculations prepared by the Loan Parties to determine Eligible Credit Card Accounts Accounts, Eligible Trade Accounts, Eligible Inventory, Eligible Consigned Inventory, and Eligible In-Transit Inventory, such worksheets detailing the Credit Card Accounts, other Accounts and Inventory excluded from Eligible Credit Card Accounts Accounts, Eligible Trade Accounts, Eligible Inventory, Eligible Consigned Inventory, and Eligible In-Transit Inventory and the reason for such exclusion;
(ivv) a reconciliation of the Loan Parties’ Credit Card Accounts, other Accounts and Inventory between (A) the amounts shown in the Loan Parties’ general ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above and (B) the amounts and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (e) above as of such date; and
(vvi) such other information regarding the Collateral or Loan Parties as the Administrative Agent may from time to time reasonably request.
(g) Concurrently with any delivery thereof to the members of the IPCo JV, and no less frequently than once per fiscal quarter, all financial statements, other reports and material notices with respect to the IPCo JV.
(h) Concurrent with delivery thereof to the ABL Agent or the ABL Lenders, as applicable, any additional (or more frequent) information or reports provided to the ABL Agent or the ABL Lenders pursuant to the ABL Credit Agreement (without duplication of reports delivered under this Agreement). The Borrower Representative shall be deemed to have furnished to the Administrative Agent the financial statements and certificates required to be delivered pursuant to Sections 5.01(a) and (b) and the reports and other material required by Section 5.02(p)(iv) upon the filing of such financial statements or material by the Company through the SEC’s ▇▇▇▇▇ system (or any successor electronic gathering system) or the publication by the Company of such financial statements on its website, so long as such system or website is publicly available; provided that, the Borrower Representative shall, at the reasonable request of the Administrative Agent or any Lender, promptly deliver electronic or paper copies of such filings together all accompanying exhibits, attachments, calculations, or other supporting documentation included with such filing.
Appears in 1 contract