Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain correct and accurate inventory records in a manner consistent with its current practices as of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliable, consistent and accurate stock ledger inventory system at the Retail Division), (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party); (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (Spartan Stores Inc), Loan and Security Agreement (Spartan Stores Inc)
Inventory Covenants. With respect to the Inventory: (a) each US Borrower and Guarantor shall at all times maintain inventory records satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent US Borrower’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, each US Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent and Tranche B Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors each US Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its such US Borrower’s business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent's ’s and Tranche B Agent’s request, Borrowers each US Borrower shall, at their its expense, but no more than one (1) time once in any twelve six (126) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 and Tranche B Agent written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Required Lenders and by an appraiser acceptable to AgentRequired Lenders, addressed to Agent and Lenders and or upon which Agent and Lenders are is expressly permitted to rely; (e) Borrowers and Guarantors each US Borrower shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each US Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors each US Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any such US Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors each US Borrower shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors each US Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofand Tranche B Agent, acquire or accept any Inventory on consignment or approvalapproval and (j) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof.
Appears in 2 contracts
Samples: General Security Agreement (SMTC Corp), General Security Agreement (SMTC Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as reasonably describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shallat their expense, conduct a physical count of the Inventory at least once each fiscal quarter as either through periodic cycle counts or wall to non-perishable wall counts, so that all Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory subject to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle provided, that Borrowers and Guarantors shall conduct additional physical counts or otherwise, of Inventory as to the Inventory of the Distribution Division, but in each case provided herein at any time or times as Agent may request on or after request, such additional physical counts at Agent’s expense unless an Event of DefaultDefault then exists, in which case at Borrowers’ and Guarantors’ expense, and promptly following any all such physical inventory inventories (whether through periodic cycle counts or wall to wall counts) Borrowers shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentAgent (which consent shall not be unreasonably withheld), except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinherein and except to return defective or non-conforming Inventory to the manufacturers or vendors thereof; (d) upon Agent's request, Borrowers shall, and shall cause their Subsidiaries to, cooperate with any appraiser retained by Agent in the conduct of appraisals of Inventory, such appraisals (i) to be conducted at their such time or times as Agent may request, (ii)(x) to be conducted, at Borrower’s expense, no more less than one two (12) time times in any twelve (12) month period, but unless Adjusted Excess Availability is less than the Specified Amount, then no less than three (3) times in such twelve (12) month period and (y) to be conducted, at any time or times as Agent may request on or after Agent’s expense unless an Event of DefaultDefault then exists in which case at Borrowers’ expense, deliver or cause and (ii) to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (g) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; Inventory except for the right of return given to retail customers of Borrowers such Borrower or Guarantor in the ordinary course of the business and of such Borrower or Guarantor in accordance with the then current return policy of Borrowerssuch Borrower or Guarantor; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (Hancock Fabrics Inc), Loan and Security Agreement (Hancock Fabrics Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Bank, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Bank may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Bank with a report in the form and with such specificity as may be reasonably satisfactory to Agent Bank concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentBank, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon AgentBank's request, Borrowers Borrower shall, at their its expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent Bank may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Bank written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Bank and by an appraiser acceptable to AgentBank, addressed to Agent and Lenders and Bank or upon which Agent and Lenders are Bank is expressly permitted to rely; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors other than in the ordinary course of business as disclosed to Bank by Borrower from time to time, Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofBank, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Stock Pledge and Security Agreement (Hallwood Group Inc), Loan and Security Agreement (Hallwood Group Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableBorrower’s or Guarantor’s Inventory, consistent such Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers each Borrower and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Guarantor shall conduct a physical count of the its Inventory at least once each fiscal quarter as either through periodic cycle counts or wall to non-perishable wall counts, so that all Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory subject to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors no Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its such Borrower’s or Guarantor’s business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on at Agent’s expense, or after at any time or times as Agent may reasonably request at Borrowers’ expense during an Event of DefaultAdditional Appraisal/Field Exam Period, deliver or cause to be delivered to Agent 67 written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than one (1) time in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, so long as no Availability Compliance Period exists, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records; (f) each Borrower and Guarantor shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (fg) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory Inventory; (but nothing contained herein shall be construed as the basis for any liability of any i) no Borrower or Guarantor as to any third party); (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any such Borrower or Guarantor to repurchase such Inventory; Inventory except for the right of return given to retail customers of Borrowers any Borrower or Guarantor in the ordinary course of the business and of such Borrower or Guarantor in accordance with the then current return policy of Borrowerssuch Borrower; (hj) Borrowers each Borrower and Guarantors Guarantor shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall notno Borrower or Guarantor shall, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (New York & Company, Inc.), Loan and Security Agreement (New York & Company, Inc.)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor the Borrowers shall at all times maintain inventory records reasonably satisfactory to the Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of Inventory, the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliable, consistent Borrowers’ cost therefor and accurate stock ledger inventory system at the Retail Division), monthly withdrawals therefrom and additions thereto; (b) the Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter year as to perpetual inventory and quarterly as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Divisionperpetual inventory, but in each case at any time or times as Agent the Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent the Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent the Lender concerning such physical count; (c) the Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agentthe Lender, except for sales, returns or transfers sales of Inventory in the ordinary course of its the Borrowers’ business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which the Borrowers that is in transit to the locations set forth or permitted herein; (d) upon Agentthe Lender's request, the Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent the Lender may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 the Lender written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent the Lender and by an appraiser acceptable to Agentthe Lender, addressed to Agent and Lenders the Lender and upon which Agent and Lenders are the Lender is expressly permitted to rely; (e) the Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Inventory or other Collateral constitutes farm products or the proceeds thereof; (g) the Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) except as set forth on Schedule 5.2 hereto as agreed to by the Lender, the Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return return, or may obligate any Borrower or Guarantor the Borrowers to repurchase repurchase, such Inventory; except for Inventory other than the right return of return given to retail customers of Borrowers defective Inventory in the ordinary course of business and in accordance with the then current return policy of Borrowersbusiness; (hi) the Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (ij) upon Agent's request, the Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent the Lender or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower the Borrowers to Agent the Lender pursuant to Section 7.1(a) 8.6 hereof, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan Agreement (Coachmen Industries Inc), Loan Agreement (Coachmen Industries Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Loan Party shall at all times maintain inventory records, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory and such practices as a result of the establishment of a reliable, consistent and accurate stock ledger inventory system at the Retail Division), Loan Party’s cost therefor; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Loan Parties shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of Loan Parties’ historical practice in effect on the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, Closing Date but in each case at any time or times as Agent may request on or after upon the occurrence and during the continuation of an Event of DefaultDefault or a Cash Dominion Event, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors Loan Parties shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor Loan Party which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers shall, at their expense, no more than one four (14) time times in any twelve (12) month period, but at any time or times as Agent may request on or after upon the occurrence and during the continuation of an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; provided that if no Event of Default has occurred and is continuing, Excess Liquidity is at least $100,000,000 and Total Excess Availability is greater than the Threshold Amount, the Borrowers shall be required to bear the cost of only two (2) such appraisals in any twelve (12) month period; (e) Borrowers and Guarantors Loan Parties shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (g) each Borrower and Guarantor Loan Party assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party); (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors Loan Parties shall keep the Inventory in good and marketable conditioncondition (other than Inventory that is old or obsolete or that the Loan Parties no longer intend to sell in the ordinary course of business); and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Loan Parties shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead the Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (Louisiana-Pacific Corp), Loan and Security Agreement (Louisiana-Pacific Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers (other than Sumco and Guarantors shall, H&H Electronic) shall conduct a physical count of the their Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the H&H Electronic shall conduct a physical count of their Inventory of the Distribution Divisionat least once each month, but (in each case any case) at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers shall, at their expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) [intentionally omitted]; (f) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (fg) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gi) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (hj) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (Handy & Harman Ltd.), Loan and Security Agreement (WHX Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers (other than Sumco and Guarantors shall, H&H Electronic) shall conduct a physical count of the their Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the and H&H Electronic shall conduct a physical count of its Inventory of the Distribution Divisionat least once each month, but (in each case any case) at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers shall, at their expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent’s request, Borrowers shall, at their expense, no more than two (2) times in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent a written assayer’s report as to the Precious Metals Inventory in form, scope and methodology acceptable to Agent and by an assayer acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (f) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (fg) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gi) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (hj) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (Handy & Harman Ltd.), Loan and Security Agreement (WHX Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and each Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers Borrower and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether either through periodic cycle counts or otherwisewall to wall counts, as so that all Inventory is subject to the Inventory of the Distribution Division, such counts at least once each year but in each case at any time or times as Agent may request on or after an Event of DefaultDefault has occurred and is continuing, and promptly following any such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers Borrower and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers Borrower shall, at their expense, no more than two (2) times in any twelve (12) month period (and only one (1) time in any twelve (12) month period, at the Agent’s option, in the event that Excess Availability is equal to or greater than $15,000,000), but at any time or times as Agent may reasonably request on at the expense of Agent and Lenders, or at any time or times a Agent may request at Borrower’s expense at any time after an Event of DefaultDefault exists or has occurred and is continuing, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers Borrower and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party); (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical event any count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a7.3(b) hereof, acquire above indicates any material irregularities or accept any Inventory on consignment or approval.other adverse
Appears in 2 contracts
Samples: Loan and Security Agreement (HHG Distributing, LLC), Loan and Security Agreement (Hhgregg, Inc.)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain Inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall cause an independent firm acceptable to Lender to conduct a physical cycle count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with Borrower's existing practices with respect thereto on the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution DivisionOriginal Closing Date, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon AgentLender's request, Borrowers Borrower shall, at their its expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent Lender may request (i) on or after an Event of DefaultDefault has occurred and is continuing or (ii) on or after a date on which the amount available under the lending formula set forth in Section 2.1(a) hereof exceeds the outstanding Loans and Letter of Credit Accommodations by less than $10,000,000, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably (including, without limitation, on a "going out of business" basis) acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and , other than in accordance with Borrower's policies in existence on the then current return policy of BorrowersOriginal Closing Date; (h) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable conditioncondition (ordinary wear and tear excepted); and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (Eagle Food Centers Inc), Loan and Security Agreement (Eagle Food Centers Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower’s business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent's Lender’s request, Borrowers Borrower shall, at their its expense, no more than one two (12) time times in any twelve calendar year (12) month period, but at any time or times as Agent Lender may request on or after an Event of Default), deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an Hilco Appraisal Services or other appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (ih) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approvalconsignment.
Appears in 2 contracts
Samples: Loan and Security Agreement (Vector Group LTD), Loan and Security Agreement (Vector Group LTD)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Borrowers shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrowers' cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrowers' business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such any Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon AgentLender's request, Borrowers shall, at their expense, no more than one (1) time once in any twelve (12) month periodperiod in which no Availability Triggering Event occurs or twice in any twelve (12) month period during which an Availability Triggering Event occurs or an Availability Compliance Period (related to an Availability Triggering Event) exists, but at any time or times as Agent Lender may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Lender written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders Lender and upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Inventory or other Collateral constitutes farm products or the proceeds thereof; (g) Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent Lender or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower Borrowers to Agent Lender pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (Guess Inc Et Al/Ca/), Loan and Security Agreement (Guess Inc Et Al/Ca/)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon AgentLender's request, Borrowers Borrower shall, at their its expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent Lender may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Lender written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders Lender and upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, each proceeds thereof; (g) Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (hi) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable condition; and (ij) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent Lender or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent Lender pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (Ic Isaacs & Co Inc), Loan and Security Agreement (Hirsch International Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain correct and accurate inventory records reasonably satisfactory to Agent in a substantially the same manner consistent with its current practices as of being maintained on the date hereof (except subject, however, to the extent terms of changes in such practices as a result clause (o) of the establishment definition of a reliableEligible Inventory), consistent keeping correct and accurate stock ledger inventory system at records itemizing and describing the Retail Division)kind, type, quality and quantity of Inventory and such Borrower’s or Guarantor’s cost therefor; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that no less frequently than is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance consistent with the current accounting past practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution DivisionGuarantors, but in each case at any time or times as Agent may request on or after upon the occurrence and during the continuance of an Event of Default, and promptly following any such physical inventory shall shall, promptly upon Agent’s request, supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer or distributor thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on at the expense of Agent or after at the expense of Borrowers upon the occurrence and during the continuance of an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (g) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory Inventory, (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party); (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; , except for the right of return given to retail customers of Borrowers such Borrower or Guarantor in the ordinary course of the business and of such Borrower or Guarantor in accordance with the then current return policy of Borrowerssuch Borrower or Guarantor; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (Travelcenters of America LLC), Loan and Security Agreement (Travelcenters of America LLC)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Guarantor shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers shall, at their expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors Guarantor shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (g) Borrowers shall, at all times, provide sufficient storage for and Lendersmaintain sufficient stocks of all manuals, on installation kits and other product support, marketing and sales materials related to Inventory of Borrowers consisting of finished goods in order to satisfy any requirements for such materials known or expected by any Borrower in connection with the one handoperation, and Borrowers and Guarantors, on the other hand, marketing or sale of such Inventory by any Borrower or otherwise; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gi) Borrowers and Guarantors Guarantor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (hj) Borrowers and Guarantors Guarantor shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Guarantor shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval; and (l) without limiting the rights of Agent with respect to the establishment of Reserves or otherwise, at any time Excess Availability is less than $2,500,000, Agent may, at its option, establish Reserves to reflect accounts payable or other obligations outstanding to the Microsoft Companies in the aggregate more than sixty (60) days past due, or in the event that the aggregate amount of such accounts payable or other obligations more than thirty (30) days past due but less than sixty (60) days past due exceed $1,000,000, then to reflect all such accounts payable or other obligations in the aggregate more than thirty (30) days past due (in each case other than accounts payable or other obligations being contested or disputed by such Borrower or Guarantor in good faith) or that exceed $3,000,000 for software obligations or $1,000,000 for hardware obligations.
Appears in 2 contracts
Samples: Loan and Security Agreement (HyperSpace Communications, Inc.), Loan and Security Agreement (HyperSpace Communications, Inc.)
Inventory Covenants. With respect to the Inventory, each Guarantor: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Secured Party, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Guarantor's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division one (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two 1) time in any twelve (212) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Divisionmonth period, but in each case at any time or times as Agent Secured Party may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Secured Party with a report in the form and with such specificity as may be reasonably satisfactory to Agent Secured Party concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, herein without the prior written consent of AgentSecured Party, except for sales, returns or transfers sales of Inventory in the ordinary course of its such Guarantor's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth in the Information Certificate or permitted herein; (d) upon AgentSecured Party's request, Borrowers shall, at their its expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent Secured Party may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Secured Party written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Secured Party and by an appraiser acceptable to AgentSecured Party, addressed to Agent Secured Party and Lenders and or upon which Agent Secured Party and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, each Borrower and Guarantor proceeds thereof; (g) assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed Inventory, except for the right of return given to customers of such Guarantor consistent with its current policies as of the basis for any liability of any Borrower or Guarantor as to any third party)date hereof; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or such Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (ij) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofSecured Party, acquire or accept any Inventory on consignment or approval. In addition to, and not in limitation of, anything to the contrary contained herein, Secured Party shall have the right to request the delivery to Secured Party of all documents, invoices and bills of lading relating to any in-transit Inventory. In the event any account debtor returns Inventory when an Event of Default exists or has occurred and is continuing, Guarantors shall, upon Secured Party's request, hold the returned Inventory in trust for Secured Party, segregate all returned Inventory from all of its other property, dispose of the returned Inventory solely according to Secured Party's instructions, and not issue any credits, discounts or allowances with respect thereto without Secured Party's prior written consent.
Appears in 2 contracts
Samples: General Security Agreement (Delta Apparel Inc), General Security Agreement (Delta Apparel Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count counts of the Inventory at least once each fiscal quarter as to non-perishable (excluding Inventory of the Retail Division located in retail stores that have not been open for more than twelve (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (212) times each yearmonths) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether either through periodic cycle counts or otherwisewall to wall counts, as so that all Inventory located at distribution centers and retail stores that have been open for more than twelve months is subject to the Inventory of the Distribution Division, such counts at least once each year but in each case at any time or times as Agent may request on or after upon the occurrence and during the continuance of an Event of Default, and promptly following any such physical inventory counts of the Inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except (i) for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported business, (ii) for sales, returns and exchanges of Inventory to Agent manufacturers and suppliers in accordance with the terms hereof and except ordinary course of business; (iii) to move Inventory directly from one location set forth or permitted herein to another such permitted location and except (iv) for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers shall, at their expense, no more than one two (12) time times in any twelve (12) month periodperiod (or more frequently as Agent may determine but not at Borrowers’ expense), but at any time or times as Agent may reasonably request on or after upon the occurrence and during the continuance of an Event of DefaultDefault or if there is a Material Adverse Effect (at Borrowers’ sole expense), deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; provided, however, that at all times Average Excess Availability is greater than fifty percent (50%) of the Revolving Commitments for the prior twelve month period prior to such request, only one such appraisal shall be at the sole expense of Borrowers and Guarantors; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, to the extent applicable, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (g) as between Agent and Lenders, on the one hand, Secured Parties and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right Inventory other than returns and exchanges of return given to retail Inventory from customers of Borrowers in the ordinary course business of business and in accordance such Borrower or Guarantor consistent with the then current return policy of Borrowerssuch Borrower or Guarantor; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approvalapproval except for (x) magazines, stationery and greeting cards, and (y) perishable food stuffs of a de minimus value.
Appears in 2 contracts
Samples: Loan and Security Agreement (Vitamin Shoppe, Inc.), Loan and Security Agreement (Vitamin Shoppe, Inc.)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records that are correct and accurate inventory records in a manner consistent with its current practices as all material respects and itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory either through periodic cycle counts or wall to wall counts, so that all Inventory is subject to such counts at least once each year, but at any time or times (but not more frequently than once in any fiscal quarter) as Agent may reasonably request at any time a Default or an Event of Default exists or has occurred and is continuing, and promptly following such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (if any such counts are performed within such quarter, or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and otherwise once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such a Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, shall deliver or cause to be delivered to Agent 67 Agent, at Borrowers’ expense, written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent (and by an appraiser acceptable selected from a list of Agent-approved appraisers to be supplied by Agent to the Administrative Borrower containing not fewer than two appraisers, as such list may be augmented to include additional appraisers at the reasonable request of the Administrative Borrower or otherwise amended by Agent, from time to time), addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely, upon Agent’s request up to two (2) times in any twelve (12) consecutive month period, or at any time or times as Excess Availability shall be less than the greater of $25,000,000 or twenty (20%) percent of the least of the Maximum Credit, the Borrowing Base or the Revolving Loan Limit, up to three (3) times in any twelve (12) consecutive month period, or at any other time or times as Agent may request at any time an Event of Default shall exist or have occurred and be continuing or at any other time at Agent’s expense; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and GuarantorsBorrowers, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party); (gf) as of the date hereof, Borrowers and Guarantors shall do not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such InventoryInventory but shall give Agent prior written notice if such practice changes together with such information with respect to the new policy as may reasonably be requested by Agent; except for (g) Borrowers shall use commercially reasonable practices to keep the right of return given to retail customers of Borrowers Inventory generally in good and marketable condition in the ordinary course of business business; and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the not acquire or accept any Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default on consignment or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of approval unless such Inventory has been identified in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire hereof when required to be included in such report or accept any Inventory on consignment or approvalAgent has otherwise received prior written notice thereof in form and substance reasonably satisfactory to Agent.
Appears in 2 contracts
Samples: Loan and Security Agreement (Nci Building Systems Inc), Loan and Security Agreement (Nci Building Systems Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and each Guarantor shall at all times maintain inventory records reasonably satisfactory to Administrative and Collateral Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or such Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division year (or on and after the establishment which may be done by way of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Divisioncount), but in each case at any time or times as Administrative and Collateral Agent may reasonably request on or after during the existence of an Event of Default, and promptly following any such physical inventory shall supply Administrative and Collateral Agent with a report in the form and with such specificity as may be reasonably satisfactory to Administrative and Collateral Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Administrative and Collateral Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or such Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Administrative and Collateral Agent's ’s request, Borrowers shall, at their expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Administrative and Collateral Agent may request on or after an Event of Default, deliver or cause to be delivered to Administrative and Collateral Agent 67 a full written appraisals appraisal as to the Inventory in form, scope and methodology reasonably acceptable to Administrative and Collateral Agent and by an appraiser acceptable to Administrative and Collateral Agent, addressed to Administrative and Collateral Agent and Lenders and upon which Administrative and Collateral Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Inventory or other Collateral constitutes farm products or the proceeds thereof; (g) Borrowers and Guarantors, on the other hand, Guarantors will hold Agents and each Borrower Lender harmless from and Guarantor assumes indemnify each of them with respect to all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as unless such liability arises from the basis for any liability gross negligence or willful misconduct of any Borrower such Agent or Guarantor as to any third party)Lender; (gh) except as disclosed to Administrative and Collateral Agent in writing or to the extent accounted for in the determination of the Net Orderly Liquidation Value, Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or any Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers Inventory (excluding customary warranty terms and returns accepted by such Borrower or such Guarantor in the ordinary course of business and in accordance with the then current return policy of Borrowersbusiness); (hi) Borrowers and Guarantors shall keep the Eligible Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Administrative and Collateral Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Administrative and Collateral Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (BlueLinx Holdings Inc.), Loan and Security Agreement (BlueLinx Holdings Inc.)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count counts of the Inventory at least once each fiscal quarter as to non-perishable (excluding Inventory of the Retail Division located in retail stores that have not been open for more than twelve (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (212) times each yearmonths) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether either through periodic cycle counts or otherwisewall to wall counts, as so that all Inventory located at distribution centers and retail stores that have been open for more than twelve months is subject to the Inventory of the Distribution Division, such counts at least once each year but in each case at any time or times as Agent may request on or after upon the occurrence and during the continuance of an Event of Default, and promptly following any such physical inventory counts of the Inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentAgent (unless such removal is at the direction of the ABL Agent to the extent such direction is not in violation of the Intercreditor Agreement), except (i) for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported business, (ii) for sales, returns and exchanges of Inventory to Agent manufacturers and suppliers in accordance with the terms hereof and except ordinary course of business; (iii) to move Inventory directly from one location set forth or permitted herein to another such permitted location and except (iv) for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers shall, at their expense, no more than two (2) times in any twelve (12) month period (or one (1) additional time in any twelve (12) month periodperiod as Agent may request but not at Borrowers’ expense), but at any time or times as Agent may reasonably request on or after upon the occurrence and during the continuance of an Event of Default, during a Compliance Period or if there is a Material Adverse Effect (at Borrowers’ sole expense), deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, to the extent applicable, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (g) as between Agent and Lenders, on the one hand, Secured Parties and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right Inventory other than returns and exchanges of return given to retail Inventory from customers of Borrowers in the ordinary course business of business and in accordance such Borrower or Guarantor consistent with the then current return policy of Borrowerssuch Borrower or Guarantor; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approvalapproval except for (x) magazines, stationery and greeting cards, and (y) perishable food stuffs of a de minimus value.
Appears in 2 contracts
Samples: Loan and Security Agreement (Franchise Group, Inc.), Loan and Security Agreement (Franchise Group, Inc.)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a Borrower shall cause to be conducted by an independent third party acceptable to Lender, at least once every two weeks until such time as Lender is satisfied with Borrower's inventory counting service on behalf of Borrowers reporting and Guarantors shallperpetual inventory system, following which Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon AgentLender's request, Borrowers Borrower shall, at their its expense, no more than one four times during the initial twelve (112) time month period, and thereafter at Lender's discretion, but at least two times in any twelve (12) month period, but at any time or times as Agent Lender may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto)laws; (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles entities the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan Agreement (G G S Plastic Engineering Inc), Loan Agreement (G G S Plastic Engineering Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon AgentLender's request, Borrowers Borrower shall, at their its expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent Lender may request on or after and during the continuance of an Event of Default, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders Lender and upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; Inventory except for the right rights of return given to retail customers of Borrowers in the ordinary course of business and Borrower in accordance with current practices as of the then current return policy of Borrowersdate hereof; (h) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (Anvil Knitwear Inc), Loan and Security Agreement (Anvil Holdings Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as all material respects itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether either through periodic cycle counts or otherwisewall to wall counts, so that all Inventory is subject to such counts at least once each year (except with respect to Inventory consisting of finished goods windows located at a plant of a Borrower or Guarantor, as to the Inventory which a physical count shall be conducted not less frequently than as of the Distribution Divisioneach calendar month end), but in each case at any time or times as Agent may request on at any time a Default or after an Event of DefaultDefault exists or has occurred and is continuing, and promptly following any such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent at least once each calendar quarter if any such counts are performed within such quarter, or otherwise once each calendar year, with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; except, that, Borrowers and Guarantors may remove Inventory not constituting Eligible Inventory and having an aggregate value of not more than the US Dollar Equivalent of $1,000,000 to locations not otherwise permitted hereunder; provided, that, as the date of the removal of any such Inventory and after giving effect thereto (i) no Default or Event of Default shall exist or have occurred and be continuing and (ii) Global Excess Availability of Borrowers equals not less than twelve and one-half (12 1/2%) percent of the Maximum Credit, (iii) Canadian Excess Availability equals not less than twelve and one-half (12 1/2%) percent of the Canadian Loan Limit and (iv) US Excess Availability equals not less than twelve and one-half (12 1/2%) percent of the US Loan Limit; (d) upon Agent's request, Borrowers shall, (i) at their expense, no more than one two (12) time times in any twelve (12) month period, but (ii) at their expense, one (1) additional time at any time or times that Global Excess Availability is less than the US Dollar Equivalent of $75,000,000, upon Agent’s request, (iii) at Agent’s expense, one (1) further additional time, as Agent may request on in such twelve (12) month period and (iv) at any time at Borrowers’ expense as Agent may request if a Default or after an Event of DefaultDefault shall exist or have occurred and be continuing, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party); (g) as of the date hereof, Borrowers and Guarantors shall do not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for Inventory but shall give Agent prior written notice if such practice changes together with such information with respect to the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return new policy of Borrowersas may reasonably be requested by Agent; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice provide to Agent prompt notice of any License Agreement entered into by a Borrower or the specific identification of Guarantor related to Accounts or Inventory, which License Agreement constitutes a Material Contract; and (j) Borrowers and Guarantors shall not acquire or accept any Inventory on consignment or approval unless such Inventory has been specifically identified in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire hereof when required to be included in such report or accept any Inventory on consignment or approvalAgent has otherwise received prior written notice thereof in form and substance reasonably satisfactory to Agent.
Appears in 2 contracts
Samples: Loan and Security Agreement (Associated Materials, LLC), Loan and Security Agreement (Amh Holdings, LLC)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain correct and accurate inventory records in a manner records, consistent with its the current practices each Borrower as of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliablehereof, consistent keeping correct and accurate stock ledger inventory system at records itemizing and describing the Retail Division)kind, type, quality and quantity of Inventory, such Borrower’s cost therefor and daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein, provided, that, such Borrower may remove Inventory to any locations not otherwise permitted hereunder so long as the aggregate amount of all of such Inventory at such other locations does not have a Value in excess of $10,000; (d) upon Agent's ’s request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing or at any time on or after any change in the calculation of standard costs of Inventory, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent in good faith and by an appraiser acceptable to AgentAgent (which includes Hilco Appraisal Services, LLC), addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to relyrely (provided, that, any appraisal requested at such time as an Event of Default exists or has occurred and is continuing or on and after a change in the calculation of standard costs shall not be considered for purposes of the limitation on the number of appraisals provided for herein); (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance in all material respects and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (g) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for Inventory other than the right of customers to return given to retail customers of Borrowers defective or non-conforming goods in the ordinary course of business and in accordance with the then current return policy of Borrowersbusiness; (hi) Borrowers and Guarantors shall give Agent not less than thirty (30) days’ written notice prior to the effectiveness of any change in the method of calculation of the standard costs of Inventory; (j) Borrowers shall keep the Inventory generally in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower Borrowers to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 2 contracts
Samples: Loan and Security Agreement (Haynes International Inc), Loan and Security Agreement (Haynes International Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after and during the continuance of an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon AgentLender's request, Borrowers Borrower shall, at their its expense, no more than one two (12) time times in any twelve (12) month period, and at any other time prior to an Event of Default thereafter, at Lender's expense, but at any time or times as Agent Lender may request on or after and during the continuance of an Event of Default, at Borrower's expense, deliver or cause to be delivered to Agent 67 Lender written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders Lender and upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, each proceeds thereof; (g) Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (hi) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable conditioncondition except for shrinkage of Inventory that occurs in the ordinary course of Borrower's business in an aggregate amount not to exceed $250,000 in Value in any of Borrower's fiscal years; and (ij) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent Lender or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent Lender pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower shall, and Guarantor Parent shall cause each Obligor and L/C Debtor to, at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality, location and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliableBorrower's or Obligor's or L/C Debtor's cost therefor, consistent and accurate stock ledger inventory system at the Retail Division)Sales Price thereof (including markdowns with respect thereto) and daily withdrawals therefrom and additions thereto in accordance with such Borrower's or Obligor's or L/C Debtor's existing business practices; each Borrower, (b) Borrowers Obligor and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, L/C Debtor shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors each Borrower shall not remove remove, and Parent shall cause each Retail Store Subsidiary and each other Obligor and L/C Debtor to not remove, any Inventory from the locations set forth or permitted hereinon Omnibus Schedule 2 hereto, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof as permitted hereby and except to move Inventory directly from one location set forth or permitted herein to another any other such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon AgentLender's request, Borrowers Borrowers' Agent shall, at their its expense, no more than one (1) time three times in any twelve (12) month period, but at any time or times as Agent Lender may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and Lender by an appraiser acceptable Gordon Brothers Partners, Inc. or by any othex xxxxxxxxx xxceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors each Borrower shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Inventory; each Borrower or Guarantor as to any third party); (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such InventoryInventory except with respect to a customer which is a Retail Store Subsidiary; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors each Borrower shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors each Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approvalapproval except with respect to sales of Inventory to Retail Store Subsidiaries. Borrowers shall not sell any Inventory to any Person other than to any other Borrower or to any Retail Store Subsidiaries or other Obligor without Lender's written consent, except, that, Borrowers may sell Inventory to a Person which is not a US Subsidiary (i) in an aggregate amount in any single transaction or related series of transactions of up to $10,000,000, provided, that, such Inventory is not sold for a sales price below fifty (50%) percent (but such percentage shall be increased to seventy-five (75%) percent if any of the Blocked Account Conditions exist and are continuing) of the cost for such Inventory, the purchase price therefor is due and payable on or before delivery to the buyer thereof, written notice thereof is given to Lender pursuant to Section 7.1(c)(iii) hereof, and, if any of the Blocked Account Conditions exist, all proceeds of such sales of Inventory are immediately paid to Lender, and (ii) where Inventory has been acquired by Borrowers for the specific purpose of resale thereof to such Person, provided that, such Inventory is not sold for a sales price below one hundred (100%) percent of the cost for such Inventory, the entire purchase price therefor is due and payable on or before delivery to the buyer thereof, written notice thereof is given to Lender pursuant to Section 7.1(c)(iii) hereof and the entire proceeds of such sale are immediately paid to Lender. Upon delivery to or for the account of any Borrower, Parent or other Subsidiary of documents of title with respect to Inventory accompanying drafts under a letter of credit opened for the account of any of Borrowers or otherwise relating to Inventory, such documents of title shall be immediately delivered to and held by a customs broker or freight forwarder who has executed a bailment letter with respect thereto in favor of Lender, in form and substance satisfactory to Lender, or, if an Event of Default has occurred, as Lender otherwise directs. All inventory acquired pursuant to the Additional L/C Accommodations shall be owned by and title thereof shall only be in the name of Borrowers, until resold to a Retail Store Subsidiary and all bills of lading with respect to the importation of such inventory into the United States shall be delivered by an overnight courier service only to a customs broker who has executed a bailment letter with respect thereto in favor of Lender, in form and substance satisfactory to Lender. Borrowers shall not use any customs broker or freight forwarder for the importation of Inventory into the United States or any cargo consolidator or store any of their Eligible Inventory nor permit the Additional L/C Debtors to store any of their finished goods inventory outside the United States (other than such inventory which is in transit and covered by a bill of lading issued by a third party and fxxxxhed goods inventory for which the purchase price has not been paid to the manufacturer thereof located at the premises of such manufacturer) with any Person, except, with respect to each of the foregoing, for any such Person who has executed a bailment letter with respect thereto in favor of Lender, in form and substance satisfactory to Lender.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower's or Guarantor's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's request, Borrowers shall, at their expense, no more than one (1) time twice in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to AgentAgent and Co-Arranger, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers Borrower and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return (except for the right of customers for Inventory which is defective or non-conforming) or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofAgent, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (Allou Health & Beauty Care Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records itemizing and describing the kind, type, quality and quantity of Inventory, such Borrower's cost therefor and daily withdrawals therefrom and additions thereto; (b) each Borrower shall conduct daily cycle counts of the Inventory in a manner consistent with satisfactory to its current practices as of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableindependent certified public accountants, consistent and accurate stock ledger inventory system at the Retail Division), (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, conduct a physical count of the Inventory, and promptly following any such physical inventory shall supply Agent Lender upon its request, with a report reports in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical countcounts; (c) Borrowers and Guarantors no Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its such Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon AgentLender's request, Borrowers shall, at their expense, no more than one two (12) time times in any twelve (12) month period, inclusive of any appraisals delivered in accordance with the Congress Agreement (not counting the appraisal provided pursuant to Section 4.1(j) hereof), but at any time or times as Agent Lender may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Lender full written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser reasonably acceptable to AgentLender, addressed to Agent and Lenders Lender and upon which Agent and Lenders Lender are expressly permitted to rely; (e) Borrowers and Guarantors each Borrower shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (g) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors no Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any such Borrower or Guarantor to repurchase such Inventory; , except for the right of return given to retail customers of Borrowers in the ordinary course of Borrowers' business and in accordance with the then current return policy of Borrowerspractices and policies set forth on Schedule 7.3 hereto; (hi) Borrowers and Guarantors each Borrower shall keep the Inventory in good and marketable condition; and (ij) upon Agent's request, Borrowers no Borrower shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent Lender or the specific identification of such Inventory in a report with respect thereto provided by Lead such Borrower to Agent Lender pursuant to Section 7.1(a7.1 (a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether either through periodic cycle counts or otherwise, as wall to wall counts so that at least ninety-five (95%) of all Inventory is subject to such counts at least once each year during the Inventory of the Distribution Division, term hereof but in each case at any time or times as Agent Lender may request on or after an Event of DefaultDefault and for so long as the same is continuing, and promptly following any such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's Lender’s request, Borrowers shall, (i) at their expense, no more than one two (12) time times in any twelve (12) month period, but (ii) at their expense one (1) additional time at any time that Excess Availability is less than $10,000,000, (iii) at Lender’s expense, two (2) further additional times, as Lender may request in such twelve (12) month period and (iv) at any time or times at Borrowers’ expense as Agent Lender may request on if a Default or after an Event of DefaultDefault shall exist or have occurred and be continuing, deliver or cause to be delivered to Agent 67 Lender written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser reasonably acceptable to AgentLender, addressed to Agent and Lenders Lender and upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (g) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; , except for the right of to return given to retail customers of Borrowers in the ordinary course of the business and of Borrowers in accordance with the then current return policy of Borrowers; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable conditioncondition (subject to Borrowers’ normal reserves for damaged and defective Inventory); and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent Lender or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent Lender pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's request, Borrowers Borrower shall, at their its expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; Inventory except for the right of return given to retail customers of Borrowers in Borrower consistent with its current policies as of the ordinary course of business and in accordance with the then current return policy of Borrowersdate hereof; (h) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofAgent, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Guarantor's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Guarantor shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall EXHIBIT 10.3 supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Guarantor's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon AgentLender's request, Borrowers Guarantor shall, at their its expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent Lender may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors Guarantor shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors Guarantor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors Guarantor shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Guarantor shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth herein or permitted hereinfor which Borrower has complied with the requirements set forth in Section 9.2 hereof, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one such location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) after an Event of Default and upon AgentLender's request, Borrowers Borrower shall, at their its expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent Lender may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in material conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable condition, except with respect to Inventory that expires or is damaged in the ordinary course of Borrower's business; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approvalapproval (other than empty cans or pie filling).
Appears in 1 contract
Samples: Loan and Security Agreement (Chiquita Brands International Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableBorrower’s or Guarantor’s Inventory, consistent such Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers each Borrower and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Guarantor shall conduct a physical count of the its Inventory at least once each fiscal quarter as either through periodic cycle counts or wall to non-perishable wall counts, so that all Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory subject to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors no Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its such Borrower’s or Guarantor’s business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to rely as follows: (i) so long as Compliance Excess Availability is greater twenty (20%) percent of the Maximum Credit, no more than one (1) such written appraisal in any twelve (12) month period, (ii) if Compliance Excess Availability is at any time less than or equal to twenty (20%) percent of the Maximum Credit, no more than two (2) such written appraisals in any twelve (12) month period, and (iii) if a Default or an Event of Default exists or has occurred and is continuing, such number of written appraisals as Agent may request; provided, that, at any time or times as Agent may request, at Agent’s expense, Agent may arrange to have appraisals conducted as to the Inventory; (e) upon Agent’s request, Borrowers and Guarantors shall, at their expense, deliver or cause to be delivered to Agent field examinations as to the Inventory in form, scope and methodology acceptable to Agent and by a field examiner acceptable to Agent, addressed to Agent and upon which Agent and Lenders are expressly permitted to relyrely as follows: (i) so long as Compliance Excess Availability is greater twenty (20%) percent of the Maximum Credit, no more than one (1) such field examination in any twelve (12) month period, (ii) if Compliance Excess Availability is at any time less than or equal to twenty (20%) percent of the Maximum Credit, no more than two (2) such field examinations in any twelve (12) month period, and (iii) if a Default or an Event of Default exists or has occurred and is continuing, such number of field examinations as Agent may request; provided, that, at any time or times as Agent may request, at Agent’s expense, Agent may arrange to have field examinations conducted as to the Inventory; (ef) upon Agent’s request, Borrowers and Guarantors shall, at their expense, conduct through Washington Inventory Service or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers and Guarantors shall promptly deliver confirmation in a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of Borrowers and Guarantors to reconcile the inventory count to Borrowers’ and Guarantors’ inventory records, as follows: (i) so long as Compliance Excess Availability is greater twenty (20%) percent of the Maximum Credit, no more than one (1) such physical count in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, (ii) if Compliance Excess Availability is at any time less than or equal to twenty (20%) percent of the Maximum Credit, no more than two (2) such physical counts in any twelve (12) month period, and at a time to coincide with Borrowers’ and or Guarantors’ physical count of the Inventory, and (iii) if a Default or an Event of Default exists or has occurred and is continuing, such number of physical counts as Agent may request; provided, that, at any time or times as Agent may request, at Agent’s expense, Agent may arrange to have written reports or appraisals conducted as to the Inventory; (g) each Borrower and Guarantor shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (fh) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (i) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory Inventory; (but nothing contained herein shall be construed as the basis for any liability of any j) no Borrower or Guarantor as to any third party); (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any such Borrower or Guarantor to repurchase such Inventory; Inventory except for the right of return given to retail customers of Borrowers any Borrower or Guarantor in the ordinary course of the business and of such Borrower or Guarantor in accordance with the then current return policy of Borrowerssuch Borrower; (hk) Borrowers each Borrower and Guarantors Guarantor shall keep the Inventory in good and marketable condition; and (il) upon Agent's request, Borrowers no Borrower or Guarantor shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead such Borrower or Guarantor to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (New York & Company, Inc.)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping records that are correct and accurate inventory in all material respects including records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower's or Guarantor's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after the occurrence and during the continuance of an Event of Default, and promptly as soon as reasonably practicable following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to 50 Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory with a Value in excess of $250,000, in the case of Inventory at any one (1) location, or in excess of $500,000 in the aggregate for all Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, such consent not to be unreasonably withheld or delayed so long as no Default or Event of Default has occurred and is continuing, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported (including amounts shipped to Agent outside processors identified on Schedule 8.2 to the Information Certificate (subject to the rights of Borrowers and Guarantors to deliver Inventory into the possession of additional processors in accordance with the terms hereof Section 9.2)) and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after the occurrence and during the continuance of an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology substantially the same as reflected in the appraisals delivered to Agent prior to the Date hereof or otherwise reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; provided, however, that so long as no Default or Event of Default shall have occurred and be continuing, Agent shall not retain any appraiser without the prior written consent of Administrative Borrower Representative, which consent shall not be unreasonably withheld or delayed; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in material conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (g) as between Borrowers, Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable condition, ordinary wear and tear excepted; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower Representative to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval, except in accordance with past practices and policies.
Appears in 1 contract
Samples: Loan and Security Agreement (International Wire Group Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether either through periodic cycle counts or otherwise, as wall to wall counts so that at least ninety-five (95%) percent of all Inventory is subject to such counts at least once each year during the Inventory of the Distribution Division, term hereof but in each case at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, and promptly following any such physical inventory (whether through periodic cycle counts or wall to wall count) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers shall, (i) at their expense, no more than one two (12) time times in any twelve (12) month period, but (ii) at their expense one (1) additional time at any time that Excess Availability is less than $10,000,000, (iii) at Agent’s expense, two (2) further additional times, as Agent may request in such twelve (12) month period and (iv) at any time or times at Borrowers’ expense as Agent may request on if a Default or after an Event of DefaultDefault shall exist or have occurred and be continuing, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (g) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; , except for the right of to return given to retail customers of Borrowers in the ordinary course of the business and of Borrowers in accordance with the then current return policy of Borrowers; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable conditioncondition (subject to Borrowers’ normal reserves for damaged and defective Inventory); and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower's or Guarantor's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers (other than Sumco and Guarantors shall, H&H Electronic) shall conduct a physical count of the their Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the and Sumco and H&H Electronic shall conduct a physical count of their Inventory of the Distribution Divisionat least once each month, but (in each case any case) at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's request, Borrowers shall, at their expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) upon Agent's request, Borrowers shall, at their expense, no more than two (2) times in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent a written assayer's report as to the Precious Metals Inventory in form, scope and methodology acceptable to Agent and by an assayer acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (f) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (fg) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (h) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gi) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (hj) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may in good faith be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except (i) for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except business, (ii) to move Inventory directly from one location set forth or permitted herein to another such location location, and except for (iii) Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, Borrower shall deliver or cause to be delivered to Agent 67 delivered, at its expense (i) a written appraisals appraisal as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to relyrely (each such appraisal being referred to as an “Inventory Appraisal”), no more than once in any twelve (12) month period, (ii) an Inventory Appraisal at any time or times as Agent may request on or after an Event of Default and for so long as the same is continuing, and (iii) an Inventory Appraisal, at any time that Excess Availability shall be less than the amount equal to $40,000,000; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; Inventory (except for the right of customers to return given to retail customers of Borrowers defective or non-conforming goods in the ordinary course of business and in accordance consistent with the then current return policy practices of BorrowersBorrower as of the date hereof); (h) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval. Not later than ninety (90) days after the date hereof, Borrower shall deliver to Agent and Lenders an appraisal of all Inventory of Borrower, in form and scope acceptable to Agent, performed by an appraiser acceptable to Agent and upon which Agent is expressly authorized to rely. In addition, no later than fifteen (15) days after the date hereof, Borrower shall deliver to Agent and Lenders the appraisal being currently conducted by Xxxxx Xxxxxx LLC of all Inventory acquired pursuant to the Permitted Atlantis Plastics Acquisition, in form and scope acceptable to Agent, upon which Agent is expressly authorized to rely.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as all material respects itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as either through periodic cycle counts or wall to non-perishable wall counts, so that all Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory subject to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on at any time a Default or after an Event of DefaultDefault exists or has occurred and is continuing, and promptly following any such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent at least once each calendar quarter if any such counts are performed within such quarter, or otherwise once each calendar year, with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory having an aggregate value of more than $500,000 in the aggregate, from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's request, Borrowers shall, (i) at their expense, no more than one two (12) time times in any twelve (12) month period, but (ii) at any time or times Agent’s expense, one (1) further additional time, as Agent may request on in such twelve (12) month period and (iii) at any time at Borrowers’ expense as Agent may request if a Default or after an Event of DefaultDefault shall exist or have occurred and be continuing, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects with applicable laws (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party); (g) as of the date hereof, Borrowers and Guarantors shall do not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for Inventory but shall give Agent prior written notice if such practice changes together with such information with respect to the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return new policy of Borrowersas may reasonably be requested by Agent; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable conditionall respects as required under the terms of this Agreement; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent not acquire or the specific identification of accept any Inventory on consignment or approval unless such Inventory has been specifically identified in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire hereof when required to be included in such report or accept any Inventory on consignment or approvalAgent has otherwise received prior written notice thereof in form and substance reasonably satisfactory to Agent.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower's or Guarantor=s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's request, Borrowers shall, at their expense, no more than one three (13) time times in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (g) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; Inventory except (i) for the right of return given by Borrowers to retail its customers of Borrowers in the ordinary course of business and in accordance consistent with the then current return policy practices of BorrowersBorrowers as of the date hereof; and (ii) sales to customers on consignment in the ordinary course of business of such Borrower consistent with the current practices of Borrowers in effect on the date hereof, provided, that, (A) a report of such Inventory is provided by Borrowers to Agent pursuant to Section 7.1 hereof and (B) in no event shall the aggregate dollar amount of all such Inventory so sold exceed $2,500,000 at any time; (hi) Borrowers each Borrower and Guarantors Guarantor shall keep the Inventory in good and marketable condition; and (ij) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has each Borrower shall not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approvalapproval without including such Inventory in a report of such Inventory provided by Borrowers to Agent pursuant to Section 7.1 hereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Pep Boys Manny Moe & Jack)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain correct and accurate inventory records in a manner consistent with its current practices as none of the date hereof (except to Borrowers or Guarantors shall remove any Inventory with a fair market value in excess of $1,000,000 in the extent of changes in aggregate for all such practices as a result of the establishment of a reliable, consistent and accurate stock ledger inventory system at the Retail Division), (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (Borrowers or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of notice to Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such a Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (db) upon Agent's request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope each Borrower and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors Guarantor shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (fc) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (d) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (ge) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate records itemizing and describing the kind, type and quantity of Inventory, such Borrower's or Guarantor’s cost therefor and daily withdrawals therefrom and additions thereto; (f) Borrowers and Guarantors shall not sell conduct a physical count of the Inventory to at least once each year but at any customer time or times as Agent may request on approvalor after an Event of Default, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase and promptly following such Inventory; except for the right of return given to retail customers of Borrowers physical inventory shall supply Agent, if requested by Agent, with a report in the ordinary course of business form and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable conditionsuch specificity as may be satisfactory to Agent concerning such physical count; and (ig) upon Agent's request, Borrowers shall, at their expense, conduct through no more than one (1) time in any twelve (12) month period (or two (2) times if the second such appraisal is commenced during a Cash Dominion Period), but at any time or times as Agent may request while an inventory counting service acceptable Event of Default is continuing, deliver or cause to Agent, a physical count of be delivered to Agent written appraisals as to the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is and by an appraiser acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurredAgent, the results of which shall be reported directly by such inventory counting service addressed to Agent and Borrowers Lenders and upon which Agent and Lenders are expressly permitted to rely; without limiting in any way the foregoing in this clause (g), Agent, at its expense, shall promptly deliver confirmation have the right to Agent that appropriate adjustments have been made such an appraiser, at any time, perform such additional appraisals as to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approvalInventory.”
Appears in 1 contract
Samples: Loan and Security Agreement (Jazz Technologies, Inc.)
Inventory Covenants. With respect to the Inventory: (a) each Borrower shall and Guarantor Parent shall cause each Obligor and Additional L/C Debtor to at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrowers cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory year (at which representatives of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each yearAgent may be present) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance at such time or times as is consistent with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of DefaultDefault in accordance with clause (e) below, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor Borrowers which is in transit to the locations set forth or permitted herein; (d) upon Agent's request, Borrowers shall, at their expense, so long as Excess Availability shall be greater than $50,000,000, no more than one two (12) time times in any twelve calendar year and if Excess Availability shall be equal to or less than $50,000,000 at the end of any calendar month, no more than three (123) month periodtimes in any calendar year, but at any additional time or times as Agent may request at Lenders' expense, or at any time or times as Agent may request at Borrowers' expense on or after an Event of DefaultDefault and during the continuance thereof, deliver or cause to be delivered to Agent 67 written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party); (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.scope
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers shall, at their its expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (g) except upon prior notice to and Lenders, on the one hand, and Borrowers and Guarantors, on the other handwritten approval by Agent, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan Agreement (Listerhill Total Maintenance Center LLC)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent's request, Borrowers Borrower shall, at their its expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and or upon which Agent and Lenders are is expressly permitted to rely; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofAgent, acquire or accept any Inventory on consignment or approval, except, that, Borrower may acquire or accept Inventory on consignment; provided, that, each of the following conditions is satisfied: (i) the aggregate value of such Inventory shall not exceed $4,000,000 at any time, (ii) the consignor of such Inventory shall not have any claim or interest in any Receivables, (iii) all of such consigned Inventory shall, at all times, be reported to Agent as consigned Inventory (and not included in any reports as Inventory of Borrower), and (iv) such consigned Inventory shall, at all times, be conspicuously labelled or otherwise marked as "consigned" Inventory and shall be physically separated from Inventory owned by Borrower in designated segregated areas of Borrower's facilities used solely for the purpose of storing such consigned Inventory.
Appears in 1 contract
Samples: Loan and Security Agreement (Haynes International Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether either through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, otherwise at least once each year but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory (whether pursuant to periodic cycle counts or otherwise) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the Table of Contents locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers Borrower shall, at their its expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, each proceeds thereof; (g) Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (hi) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable condition; and (ij) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval. In addition to the foregoing, in the event that the Borrower, at any time, has Inventory on consignment having a value in excess of $1,000,000 in the aggregate, Borrower, at the request of Agent, shall obtain consignee waivers, which shall be in form and substance satisfactory to Agent, from any consignee in possession or control of Inventory having a value in excess of $300,000.
Appears in 1 contract
Samples: Loan and Security Agreement (Reptron Electronics Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Borrowers shall at all times maintain Inventory records reasonably satisfactory to Agents, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrowers' cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Agents may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Agents with a report in the form and with such specificity as may be reasonably satisfactory to Agent Agents concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentAgents, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrowers' business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon either Agent's request, Borrowers shall, at their expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as either Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Agents written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Agents and by an appraiser acceptable to AgentAgent , addressed to Agent and Lenders and Agents or upon which Agent and Lenders Agents are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects Applicable Law (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor Borrowers to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofAgents, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain correct and accurate inventory records in a manner consistent with its the current practices of such Borrower and Guarantor as of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliablehereof, consistent keeping correct and accurate stock ledger inventory system at records itemizing and describing the Retail Division)kind, type, quality and quantity of Inventory, such Borrower's or Guarantor's cost therefor and daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times twice each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's request, Borrowers shall, at their expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to relyrely (provided, that, any appraisal requested at such time as an Event of Default exists or has occurred and is continuing shall not be considered for purposes of the limitation on the number of appraisals provided for herein); (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance in all material respects and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (g) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for Inventory other than the right of customers to return given to retail customers of Borrowers defective or non-conforming goods in the ordinary course of business and in accordance with the then current return policy of Borrowersbusiness; (hi) Borrowers and Guarantors shall keep the Inventory generally in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead US Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as year in conjunction with its audited financial statements for such year required to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory be delivered to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold Lender pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution DivisionSection 9.6(a), but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon AgentLender's request, Borrowers Borrower shall, at their its expense, no more than one (1) time twice in any twelve (12) month periodcalendar year, and as of dates acceptable to Lender, but at any time or times as Agent Lender may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written Lender appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (ih) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval; and (i) Borrower shall send Lender a copy of each catalogue, advertisement, or other sales material sent by Borrower to any customers, not later than the time that it is sent to such customers.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain correct and accurate inventory records in a manner records, consistent with its the current practices of Borrower as of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliablehereof, consistent keeping correct and accurate stock ledger inventory system at records itemizing and describing the Retail Division)kind, type, quality and quantity of Inventory, Borrower’s cost therefor and daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein, PROVIDED, THAT, Borrower may remove Inventory to any locations not otherwise permitted hereunder so long as the aggregate amount of all of such Inventory at such other locations does not have a Value in excess of $10,000; (d) upon Agent's ’s request, Borrowers Borrower shall, at their its expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party); (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.or
Appears in 1 contract
Samples: Loan and Security Agreement (Haynes International Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Borrowers shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrowers' cost therefor and accurate stock ledger inventory system at the Retail Division), (bdaily withdrawals therefrom and additions thereto;(b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical periodic cycle count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of in a stock ledger inventory system at the Retail Division manner that is satisfactory acceptable to Borrowers and AgentBorrowers' independent certified public accountants, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Divisionand, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, conduct a physical count of the Inventory, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (ccount;(c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrowers' business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (dlocation;(d) upon at Agent's request, Borrowers shall, at their expense, expense on no more than one two (12) time occasions in any twelve (12) month period, but and at any time or times as Agent may request Agent's own expense on or after an Event of Defaultthe third and all subsequent occasions during such period, deliver or cause to be delivered to Agent 67 written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an Xxxxxxx, Xxxxxxxx & Associates, Inc. or another appraiser acceptable to Agent, addressed to Agent and Lenders and or upon which Agent and Lenders are is expressly permitted to rely; rely (ethe "Inventory Appraisal"), PROVIDED, THAT, from and after the occurrence and during the continuance of an Event of Default, all Inventory Appraisals requested by Agent shall be delivered at Borrowers' sole cost and expense;(e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (fthereto);(f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party); (gInventory;(g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kh) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofAgent, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (Damark International Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower's or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender which consent shall not be unreasonably withheld or delayed, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon AgentLender's request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent Lender may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Lender written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders Lender and upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (g) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent Lender or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent Lender pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower’s or MCE’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after while an Event of DefaultDefault exists, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such THIRD AMENDED AND RESTATED LOAN AGREEMENT physical count; (c) Borrowers Borrower and Guarantors MCE shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower’s or MCE’s business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent's request, Borrowers Borrower shall, at their its expense, at Lender’s request, but no more than one (1) time once in any twelve three (123) month periodperiod if an Event of Default does not exist, but and at any time or times as Agent Lender may request on or after an and while Event of DefaultDefault exists, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers Borrower and Guarantors MCE shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes MCE assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers Borrower and Guarantors MCE shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor MCE to repurchase such Inventory; , except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowersor unless such Inventory is not Eligible Inventory; (h) Borrowers Borrower and Guarantors MCE shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division Borrower and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors MCE shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower's cost therefor, and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shallBorrower shall cause, at Borrower's expense, RGIS or a such other third party inventory counting service on behalf of Borrowers and Guarantors shall, firm acceptable to Lender to conduct a complete physical count of the Inventory at least a minimum of once each fiscal quarter as to non-perishable Inventory of the Retail Division every twelve (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (212) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, months but in each case at any time or times as Agent Lender may request on or after upon the occurrence of an Event of Default, and promptly following any such physical inventory count such firm shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon AgentLender's request, Borrowers Borrower shall, at their its expense, no more than one (1) time twice in any twelve (12) month period, but at any time or times as Agent Lender may request on or after upon the occurrence of an Event of Default, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and Lender by an appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for Inventory with the right exception of return given to retail customers of Borrowers Inventory sold in the ordinary course of Borrower's business subject to Borrower's normal and in accordance with the then current customary return policy of Borrowerspolicy; (h) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approvalapproval except as set forth on Schedule 7.3(i) hereto; (j) Borrower shall not convert any Inventory to Rental Inventory without five (5) Business Days' prior written notice to Congress in order that Congress may exclude such Inventory from Eligible Inventory in calculating the amount of Revolving Loans available to Borrower hereunder; and (k) Borrower may return Inventory to vendors of such Inventory pursuant to normal returns policies free and clear of Lender's lien; provided, however that upon an Event of Default, Borrower shall not return any Inventory to vendors of such Inventory without Lender's prior written consent.
Appears in 1 contract
Samples: Loan and Security Agreement (Wherehouse Entertainment Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality, quantity and aging of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, each Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors no Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its a Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent's request, Borrowers shall, at their its expense, no more than one two times in any twelve (112) month period, but at any time or times as Agent may request at Agent's expense, or at any time or times as Agent may request at Borrowers' expense on or after an Event of Default, deliver or cause to be delivered to Agent written reports or appraisals or appraisal updates as to the Inventory in form, scope and methodology acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and upon which Agent is expressly permitted to rely; (e) upon Agent's request, Borrowers shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Agent, a physical count of the Inventory in form, scope and methodology acceptable to Agent no more than once in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party); (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event times as Agent may request in the event of Default shall exist or have occurredtest count variances is in excess of 5% of the Cost of all Eligible Inventory, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.promptly
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory (either in one count or a series of counts) at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (g) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (Image Entertainment Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as all material respects itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and their expense at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, year but in each case at any time or times as Agent may request on or after an Event of Default, and at any other time Agent may request at the expense of Agent and Lenders, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors no Borrower or Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers shall, at their expense, no more not less than one two (12) time times in any period of twelve (12) month periodconsecutive calendar months, but at any time or times as Agent may request on or after an Event of DefaultDefault or if Excess Availability is less than twenty (20%) percent of the Maximum Credit or Excess Availability calculated without regard to the Maximum Credit or the Inventory Loan Limit is less than $75,000,000, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in material conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (g) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers Inventory other than in the ordinary course of business and in accordance with the then current return policy of Borrowersrespect to any non-conforming goods; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable conditioncondition in all material respects; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (Global Brass & Copper Holdings, Inc.)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor each Credit Party shall at all times maintain inventory records reasonably satisfactory to the Agents, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower's or such Credit Party's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Credit Parties shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent the Agents may request on or after an the occurrence and continuation of any Event of Default, and promptly following any such physical inventory shall supply Agent the Agents with a report in the form and with such specificity as may be reasonably satisfactory to Agent the Agents concerning such physical count; (c) other than Eligible In-Transit Inventory and Eligible Storage Inventory, Borrowers and Guarantors Credit Parties shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Administrative Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor such Credit Party which is in transit to the locations set forth or permitted herein; (d) upon Agent's request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors Credit Parties shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (e) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor each Credit Party assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors Credit Parties shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor Credit Party to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors Credit Parties shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Credit Parties shall not, without prior written notice to Administrative Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower Representative to Administrative Agent pursuant to Section 7.1(a) 5.2 hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall shall, at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Guarantor's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors Guarantor shall, conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors Guarantor shall not remove any Inventory from the locations set forth or permitted hereinSpecified Locations of Guarantor, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Guarantor's business that are reported to Agent in accordance with the terms hereof and except to move Inventory to or from the distribution center to any location, to vendors for return in the ordinary course of business or directly from one location set forth or permitted herein store to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinstore; (d) upon AgentLender's request, Borrowers at any time that a Trigger Event has occurred and is continuing, Guarantor shall, at their its expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent Lender may request on or after an Event of Defaultrequest, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory of Guarantor in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to Agentlender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (eE) Borrowers and Guarantors shall Guarantor shall, produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors shall not sell Inventory to any customer on approvalGuarantor shall, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Guarantor shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approvalapproval unless such Inventory is readily identifiable.
Appears in 1 contract
Samples: Form of General Security Agreement (Musicland Stores Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after when an Event of DefaultDefault has occurred and is continuing, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon AgentLender's request, Borrowers Borrower shall, at their its expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent Lender may request on or after when an Event of DefaultDefault has occurred and is continuing, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; , except for the right sales of return given Cotton Market Products to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowerscotton growing market; (h) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records consistent with current practices as of the date hereof, keeping correct and accurate inventory records in a manner itemizing and describing the kind, type, quality and quantity of Inventory and Borrower's cost therefor; (b) Borrower shall conduct physical cycle counts of the Inventory consisting of raw materials and work-in-process consistent with its current practices as of the date hereof (except to the extent and of changes finished goods in such practices a similar manner as a result of the establishment of a reliable, consistent and accurate stock ledger inventory system at the Retail Division), (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as hereof with respect to the perishable Inventory of the Retail Divisionraw materials and work-in-process, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that Borrower shall conduct such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to of the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request (i) if at any time or times the variance between the results of the cycle counts and the records of Borrower is not reasonably satisfactory to Lender and Excess Availability is less than $3,000,000 (determined without regard to the Maximum Credit) or (ii) on or after an Event of Default, Default exists or has occurred and is continuing; (c) promptly following the cycle counts and any such other physical inventory inventory, Borrower shall upon Lender's request supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such cycle counts and any other physical count; (cd) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted hereinherein (which permitted locations include locations outside the United States of America and locations at subassemblers in each case to the extent set forth in Section 8.3 and Section 9.2 hereof), without the ten (10) Business Days prior written consent of Agentnotice to Lender and compliance with Section 9.2 hereof, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (de) upon AgentLender's request, Borrowers Borrower shall, at their its expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent Lender may request on or after at any time an Event of DefaultDefault exists or has occurred and is continuing, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (ef) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in all material respects in accordance with applicable standards of any insurance and in all material respects in conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended amended, the Gaming Laws, and all rules, regulations and orders related thereto); (fg) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; , except for the right in connection with sales of return given to retail customers of Borrowers Trial Inventory in the ordinary course of the business of Borrower and in accordance a manner consistent with the then current return policy practices of BorrowersBorrower as of the date hereof; (hi) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance merchantable condition consistent with the current accounting principles of Borrowers and Guarantors practices as of the date hereofhereof (other than work-in-process, excess packaging or obsolete or unserviceable Inventory or equipment); and (j) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Eligible Inventory: (a) each Borrower and Guarantor Credit Party shall at all times maintain inventory records reasonably satisfactory to the Administrative Agent (it being understood that records maintained substantially in accordance with historical practice are acceptable to the Administrative Agent), keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Credit Party’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, the Credit Parties shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as the Administrative Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply the Agent with a report in the form and with such specificity as may be reasonably satisfactory to the Administrative Agent concerning such physical count; (c) Borrowers and Guarantors the Credit Parties shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor Credit Party which is in transit to the locations set forth or permitted herein; herein unless (di) upon Agent's request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as the Credit Parties shall give notice to the Administrative Agent of such removal and (ii) the Credit Parties shall comply with the requirements of Section 5.12 with respect to the new location of such Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors the Credit Parties shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto)amended; (fd) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (e) each Borrower and Guarantor Credit Party assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gf) Borrowers and Guarantors the Credit Parties shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor Credit Party to repurchase such Inventory; except for and (g) the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors Credit Parties shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Credit Agreement (Primo Water Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower's or Guarantor's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as either through periodic cycle counts or wall to non-perishable wall counts, so that all Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory subject to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after at any time an Event of DefaultDefault exists or has occurred and is continuing, and promptly following any such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinherein and except to return defective or non-conforming Inventory to the manufacturers or vendors thereof; (d) upon Agent's request, Borrowers shall, at their expense, no more less than one two (12) time times in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party); (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.methodology
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain correct and accurate inventory records in a manner consistent with its current practices as of the date hereof Effective Date (except to the extent of changes in such practices as a result of the establishment of a reliable, consistent and accurate stock ledger perpetual inventory system at the Retail DivisionDivision for pharmacy and non-perishables), (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, conduct a physical count of the Inventory at least once twice each fiscal quarter year as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger retail perpetual inventory system for pharmacy or non-perishables at the Retail Division that is satisfactory to Borrowers and Administrative Agent, two one (21) times time each yearyear with respect to pharmacy and/or non-perishables, as applicable, whether through periodic cycle counts or otherwise) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereofEffective Date) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Administrative Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Administrative Agent with a report in the form and with such specificity as may be reasonably satisfactory to Administrative Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Administrative Agent, except for sales, returns or transfers of Inventory in the ordinary course of its business that are reported to Administrative Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's request, Borrowers shall, at their expense, no more (i) not less than one (1) time in any twelve (12) month period, but if Excess Availability at all times during such twelve (12) month period is greater than an amount equal to twenty (20%) percent of the Total Borrowing Base, (ii) not less than two (2) times in any twelve (12) month period, if Excess Availability at any time during such twelve (12) month period is less than or equal to an amount equal to twenty (20%) percent of the Total Borrowing Base and (iii) at any time or times as Administrative Agent may request on or after an Event of DefaultDefault or at Administrative Agent’s own expense, in each case, deliver or cause to be delivered to Administrative Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Administrative Agent and by an appraiser acceptable to Administrative Agent, addressed to Administrative Agent and Lenders and upon which Administrative Agent and Lenders are expressly permitted to rely, provided, that, unless an Event of Default exists or if Excess Availability at such time is less than thirty-five (35%) percent of the Total Borrowing Base, Administrative Agent, at its sole discretion after the request by Xxxxxxxxx, may agree to defer for a period of six months (but not more than two times during the term of this Agreement and not for consecutive six month periods) the delivery of any such appraisal required hereunder; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Administrative Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each 6991691.13 120 Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party); (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Administrative Agent's ’s request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Administrative Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Administrative Agent (but only to the extent that a physical count that is acceptable to Borrowers and Administrative Agent has not been conducted by such inventory counting service within the immediately preceding two fiscal quarter quarters so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereofEffective Date) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Administrative Agent and Borrowers shall promptly deliver confirmation to Administrative Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain correct and accurate inventory records reasonably satisfactory to Agent in a substantially the same manner consistent with its current practices as of being maintained on the date hereof (except subject, however, to the extent terms of changes in such practices as a result clause (o) of the establishment definition of a reliableEligible Inventory), consistent keeping records correct and accurate stock ledger inventory system at in all material respects itemizing and describing the Retail Division)kind, type, quality and quantity of Inventory and such Borrower’s or Guarantor’s cost therefor; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that no less frequently than is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance consistent with the current accounting past practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution DivisionGuarantors, but in each case at any time or times as Agent may request on or after upon the occurrence and during the continuance of an Event of Default, and promptly following any such physical inventory shall shall, promptly upon Agent’s request, supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except except: (i) for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except business, (ii) to move Inventory directly from one location set forth or permitted herein (including any new location opened pursuant to Section 9.2 hereof) to another such location and except for location, (iii) Inventory shipped from the manufacturer or distributor thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinherein (including any new locations opened pursuant to Section 9.2 hereof), and (iv) Inventory (other than Inventory consisting of fuel located at leased terminals) having a value not greater than $500,000 in the aggregate any time; (d) upon Agent's ’s request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on at the expense of Agent or after at the expense of Borrowers upon the occurrence and during the continuance of an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; provided, that, if a Cash Dominion Period exists, upon Agent’s request, Borrowers shall, at their expense, deliver or cause to be delivered to Agent an additional written inventory appraisal during any twelve (12) month period which shall be in form, scope and methodology reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (g) as between Agent Borrowers and LendersGuarantors, on the one hand, and Borrowers Agent and GuarantorsLenders, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory Inventory, (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party); (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; , except for the right of return given to retail customers of Borrowers such Borrower or Guarantor in the ordinary course of the business and of such Borrower or Guarantor in accordance with the then current return policy of Borrowerssuch Borrower or Guarantor; (hi) Borrowers and Guarantors shall keep the all Eligible Inventory in good and marketable conditioncondition for so long as it constitutes Eligible Inventory; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (Travelcenters of America LLC)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliable, consistent Inventory. Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon AgentLender's request, Borrowers Borrower shall, at their its expense, no more than one (1) time twice in any twelve calendar year (12) month period, but at any time or times as Agent Lender may request on or after an Event of Default), deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an Daley-Hodkin Appraisal Corporation or other appraiser acceptable to AgentLexxxx, addressed xxxxxxsed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (ih) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approvalconsignment.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent's request, Borrowers Borrower shall, at their its expense, no on a quarterly basis or more than one (1) time in any twelve (12) month period, but at any time or times frequently as Agent Lender may request on or after an Event of Defaultrequest, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an Xxxxxxx-Xxxxxxxx & Associates, Inc. or another appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to relyrely (the "Inventory Appraisal"); (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers except in the ordinary course of Borrower's business in accordance with practices and Guarantors policies previously disclosed in writing to Lender, Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval; and (j) Borrower shall not return Inventory to any vendor in the ordinary course of Borrower's business or otherwise if an Event of Default exists or has occurred and is continuing or if the Borrower has Excess Availability of less than $1,000,000.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor the Borrowers shall at all times maintain inventory records satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of Inventory, the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliable, consistent applicable Borrower’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) the Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of DefaultDefault that has occurred and is continuing, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) the Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course Ordinary Course of its business that are reported to Agent in accordance with the terms hereof Business and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent's request, ’s request the Borrowers shall, at their its expense, but no more than one (1) time once in any twelve six (126) month period, but at any time or times as Agent may request on or after an Event of DefaultDefault that has occurred and is continuing, deliver or cause to be delivered to Agent 67 written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Required Lenders and by an appraiser acceptable to AgentRequired Lenders, addressed to Agent and Lenders and or upon which Agent and Lenders are is expressly permitted to rely; (e) the Borrowers and Guarantors shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) the Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor the Borrowers to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) the Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, the Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofAgent, acquire or accept any Inventory on consignment or approval.approval and (j) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof
Appears in 1 contract
Samples: Loan Agreement (SMTC Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Guarantor's cost therefor and accurate stock ledger inventory system at the Retail Division), (b) Borrowers daily withdrawals therefrom and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, additions thereto; Guarantor shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after during the continuance of an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Guarantor's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon AgentLender's request, Borrowers Guarantor shall, at their its expense, no more than one (1) time twice in any twelve (12) month period, but at any time or times as Agent Lender may request on or after during the continuance of an Event of Default, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors Guarantor shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Inventory; Guarantor as to any third party); (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors Guarantor shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Guarantor shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count counts of the Inventory at least once each fiscal quarter as to non-perishable (excluding Inventory of the Retail Division located in retail stores that have not been open for more than twelve (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (212) times each yearmonths) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether either through periodic cycle counts or otherwisewall to wall counts, as so that all Inventory located at distribution centers and retail stores that have been open for more than twelve months is subject to the Inventory of the Distribution Division, such counts at least once each year but in each case at any time or times as Agent may request on or after upon the occurrence and during the continuance of an Event of Default, and promptly following any such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except (i) for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported business, (ii) for sales, returns and exchanges of Inventory to Agent manufacturers and suppliers in accordance with the terms hereof and except ordinary course of business; (iii) to move Inventory directly from one location set forth or permitted herein to another such location and except (iv) for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month periodperiod (or more frequently as Agent may determine but not at Borrowers’ expense), but at any time or times as Agent may reasonably request on or after upon the occurrence and during the continuance of an Event of DefaultDefault or if there is a Material Adverse Effect, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, to the extent applicable, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (g) as between Agent and Lenders, on the one hand, Secured Parties and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right Inventory other than returns and exchanges of return given to retail Inventory from customers of Borrowers in the ordinary course business of business and in accordance such Borrower or Guarantor consistent with the then current return policy of Borrowerssuch Borrower or Guarantor; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approvalapproval except for (x) magazines, stationery and greeting cards, and (y) perishable food stuffs of a de minimus value.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower's or Guarantor's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon AgentLender's request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period (provided, that if the aggregate amount of the component of the Borrowing Base based on Eligible Inventory at any time exceeds $5,000,000, two (2) times in any twelve (12) month period), but at any time or times as Agent Lender may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Lender written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders Lender and upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (g) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent Lender or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower Agent to Agent Lender pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agents, keeping correct and accurate inventory records in a manner consistent with its current practices as reasonably describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shallat their expense, conduct a physical count of the Inventory at least once each fiscal quarter as either through periodic cycle counts or wall to non-perishable wall counts, so that all Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory subject to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, provided, that Borrowers and Guarantors shall conduct additional physical counts of Inventory as provided herein at any time or times as Agents may request, such additional physical counts at such Agent’s expense unless an Event of Default then exists, in which case at Borrowers’ and Guarantors’ expense, and promptly following all such physical inventories (whether through periodic cycle counts or otherwise, as wall to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory wall counts) Borrowers shall supply Agent Agents with a report in the form and with such specificity as may be reasonably satisfactory to Agent Agents concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentAgents (which consent shall not be unreasonably withheld), except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinherein and except to return defective or non-conforming Inventory to the manufacturers or vendors thereof; (d) upon Agent's request, Borrowers shall, and shall cause their Subsidiaries to, cooperate with any appraiser retained by Working Capital Agent in the conduct of appraisals of Inventory, such appraisals (i) to be conducted at their such time or times as Working Capital Agent may request, (ii)(x) to be conducted, at Borrower’s expense, no more less than one two (12) time times in any twelve (12) month period, but unless Adjusted Excess Availability is less than the Specified Amount, then no less than three (3) times in such twelve (12) month period and (y) to be conducted, at any time or times as Agent may request on or after Working Capital Agent’s expense unless an Event of DefaultDefault then exists in which case at Borrowers’ expense, deliver or cause and (iii) to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to AgentAgents, addressed to Agent Agents and Lenders and upon which Agent Agents and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (g) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; Inventory except for the right of return given to retail customers of Borrowers such Borrower or Guarantor in the ordinary course of the business and of such Borrower or Guarantor in accordance with the then current return policy of Borrowerssuch Borrower or Guarantor; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Working Capital Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Working Capital Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain correct and accurate inventory records in a manner records, consistent with its the current practices of Borrower as of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliablehereof, consistent keeping correct and accurate stock ledger inventory system at records itemizing and describing the Retail Division)kind, type, quality and quantity of Inventory, Borrower's cost therefor and daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein, PROVIDED, THAT, Borrower may remove Inventory to any locations not otherwise permitted hereunder so long as the aggregate amount of all of such Inventory at such other locations does not have a Value in excess of $10,000; (d) upon Agent's request, Borrowers Borrower shall, at their its expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing or at any time on or after any change in the calculation of standard costs of Inventory, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent in good faith and by an appraiser acceptable to AgentAgent (which includes Hilco Appraisal Services, LLC), addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to relyrely (PROVIDED, THAT, any appraisal requested at such time as an Event of Default exists or has occurred and is continuing or on and after a change in the calculation of standard costs shall not be considered for purposes of the limitation on the number of appraisals provided for herein); (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance in all material respects and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, each proceeds thereof; (g) Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for Inventory other than the right of customers to return given to retail customers of Borrowers defective or non-conforming goods in the ordinary course of business and in accordance with the then current return policy of Borrowersbusiness; (hi) Borrowers and Guarantors Borrower shall give Agent not less than thirty (30) days' written notice prior to the effectiveness of any change in the method of calculation of the standard costs of Inventory; (j) Borrower shall keep the Inventory generally in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (Haynes International Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory no Borrower shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrowers' business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (dc) upon Agent's request, Borrowers shall, at their Lender's request and at Borrowers' expense, no more than one (1) time once in any every twelve (12) month period, but at any time or times as Agent Lender may request on at Lender's expense, or at Borrowers' expense any time or times as Lender may request after and during the continuance of an Event of Default, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (d) Borrowers shall conduct, at their expense, a physical count of the Inventory located at Borrowers' distribution center(s) at least once during each twelve (12) month period, and cycle counts of the Inventory located at Borrowers' retail stores and distribution center(s), in form, scope and methodology acceptable to Lender, and, upon Lender's request after an and during the continuance of Event of Default, Borrowers shall, at their expense, conduct through RGIS Inventory Specialists, Inc. or another inventory counting service acceptable to Lender, such cycle counts of the Inventory located at Borrowers' retail stores and distribution center(s) and such physical count of the Inventory at Borrowers' distribution center(s), in form, scope and methodology acceptable to Lender, and, in each case, the results of such counts shall be reported to Lender by Borrowers or, if applicable, directly to Lender by such inventory counting service, in such form and with such specificity as Lender may reasonably require, and Borrowers shall promptly deliver confirmation in a form satisfactory to Lender that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory counts to Borrowers' inventory records; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors no Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any such Borrower or Guarantor to repurchase such Inventory; , except for the right of return given to retail customers of Borrowers such Borrower in the ordinary course of the business and of such Borrower in accordance with the then then-current return policy of Borrowerssuch Borrower; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's requestwithout limiting the other reporting obligations of Borrowers hereunder, if Excess Availability is, or would thereby be reduced, below $5,000,000, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent shall provide three (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (43) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without days' prior written notice to Agent Lender on a separate basis of any proposed return of Inventory to the vendors thereof if the Inventory proposed to be so returned has a value in excess of $500,000, unless such return is accompanied by a contemporaneous exchange for and/or purchase of new Inventory of equal original cost and, if purchased, on normal, unsecured trade credit terms; (j) without Lender's prior written approval, no Inventory shall be returned to vendors after and during the continuance of an Event of Default, or, if as a result thereof, Excess Availability would be less than one dollar ($1.00); and (k) no Borrower shall, without the prior written consent of Lender, acquire, accept or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept hold any Inventory inventory on consignment or approvalapproval ("Consigned Inventory"), except that Borrowers may, on a combined basis acquire, accept and hold Consigned Inventory whose aggregate cost (if purchased) at no time exceeds five (5%) percent of the Cost of all of Borrowers' other Inventory, so long as such Consigned Inventory is segregated from Borrowers' other Inventory or is otherwise readily identifiable at all times by Lender, and either (i) each consignor or other supplier of such Consigned Inventory has, pursuant to a signed writing acceptable to Lender in form and substance, waived all claims to the proceeds of such Consigned Inventory received by Lender, or (ii) in the absence of a signed writing as described in clause (i), either (A) Excess Availability at all times equals or exceeds $5,000,000, or (B) if Excess Availability is less than or falls below $5,000,000, any proceeds of such Consigned Inventory in which the consignor or supplier of such Consigned Inventory has an interest superior to the security interests of Lender (as determined by Lender) are segregated from the proceeds of Borrowers' other Inventory and, at Lender's option, such segregated proceeds of such Consigned Inventory are not applied to the Obligations.
Appears in 1 contract
Samples: Loan and Security Agreement (Trans World Entertainment Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count counts of the Inventory at least once each fiscal quarter as to non-perishable (excluding Inventory of the Retail Division located in retail stores that have not been open for more than twelve (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (212) times each year104 months) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether either through periodic cycle counts or otherwisewall to wall counts, as so that all Inventory located at distribution centers and retail stores that have been open for more than twelve months is subject to the Inventory of the Distribution Division, such counts at least once each year but in each case at any time or times as Agent may request on or after upon the occurrence and during the continuance of an Event of Default, and promptly following any such physical inventory counts of the Inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except (i) for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported business, (ii) for sales, returns and exchanges of Inventory to Agent manufacturers and suppliers in accordance with the terms hereof and except ordinary course of business; (iii) to move Inventory directly from one location set forth or permitted herein to another such permitted location and except (iv) for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period (or one (1) additional time in any twelve (12) month period as Agent may request and at Borrowers’ expense if Excess Availability is less than the greater of (x) 20% of the Borrowing Cap and (y) $20,000,000 at any time during such period), but at any time or times as Agent may reasonably request on or after upon the occurrence and during the continuance of an Event of DefaultDefault or if there is a Material Adverse Effect (at Borrowers’ sole expense), deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, to the extent applicable, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) none of the Inventory or other Collateral constitutes farm products or the proceeds thereof; (g) as between Agent and Lenders, on the one hand, Secured Parties and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right Inventory other than returns and exchanges of return given to retail Inventory from customers of Borrowers in the ordinary course business of business and in accordance such Borrower or Guarantor consistent with the then current return policy of Borrowerssuch Borrower or Guarantor; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approvalapproval except for (x) magazines, stationery and greeting cards, and (y) perishable food stuffs of a de minimus value.
Appears in 1 contract
Samples: Loan and Security Agreement (Franchise Group, Inc.)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor each Aftermarket Entity shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower's or such Aftermarket Entity's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Aftermarket Entities shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors Aftermarket Entities shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor such Aftermarket Entity which is in transit to the locations set forth or permitted herein; (d) upon Agent's request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to relyrely and Borrowers also shall cause to be furnished to Agent quarterly "desk top" updates to such appraisals; (e) Borrowers and Guarantors Aftermarket Entities shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (g) each Borrower and Guarantor each Aftermarket Entity assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; Inventory except for the right of return given to retail customers of Borrowers in the ordinary course of business and de minimus Inventory that in accordance with the then current Borrowers' customary practices and policies previously disclosed in writing to Agent may from time to time be subject to return policy of Borrowersunder stock adjustment programs with customers; (hi) Borrowers and Guarantors Aftermarket Entities shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors Aftermarket Entities shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval. Notwithstanding the provisions set forth in clause (d) in this Section 7.3, the Borrowers shall not be required to cause to be conducted any inventory appraisals with respect to their Inventory during the 2006 calendar year or thereafter provided that (i) Excess Availability exceeds Fifteen Million Dollars ($15,000,000) at all times during the immediately preceding twelve months and (ii) no Event of Default or Default has occurred and is then continuing (Borrowers shall cause to be conducted as many inventory appraisals with respect to their Inventory as Agent may request upon the occurrence and during the continuation of any Event of Default or Default).
Appears in 1 contract
Samples: Loan and Security Agreement (Proliance International, Inc.)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor ------------------- shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon AgentLender's request, Borrowers Borrower shall, at their its expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent Lender may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may in good faith be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except (i) for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except business, (ii) to move Inventory directly from one location set forth or permitted herein to another such location location, and except for (iii) Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, Borrower shall deliver or cause to be delivered to Agent 67 delivered, at its expense (i) a written appraisals appraisal as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to relyrely (each such appraisal being referred to as an “Inventory Appraisal”), no more than once in any twelve (12) month period, (ii) an Inventory Appraisal at any time or times as Agent may request on or after an Event of Default and for so long as the same is continuing, and (iii) an Inventory Appraisal, at any time that Excess Availability shall be less than the amount equal to $40,000,000; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; Inventory (except for the right of customers to return given to retail customers of Borrowers defective or non-conforming goods in the ordinary course of business and in accordance consistent with the then current return policy practices of BorrowersBorrower as of the date hereof); (h) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers shall, at their expense, no more than one two (12) time times in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (g) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (American Biltrite Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Administrative and Collateral Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division year (or on and after the establishment which may be done by way of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Divisioncount), but in each case at any time or times as Administrative and Collateral Agent may reasonably request on or after during the existence of an Event of Default, and promptly following any such physical inventory shall supply Administrative and Collateral Agent with a report in the form and with such specificity as may be reasonably satisfactory to Administrative and Collateral Agent concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Administrative and Collateral Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower’s business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Administrative and Collateral Agent's ’s request, Borrowers Borrower shall, at their its expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Administrative and Collateral Agent may request on or after an Event of Default, deliver or cause to be delivered to Administrative and Collateral Agent 67 a full written appraisals appraisal as to the Inventory in form, scope and methodology reasonably acceptable to Administrative and Collateral Agent and by an appraiser acceptable to Administrative and Collateral Agent, addressed to Administrative and Collateral Agent and Lenders and upon which Administrative and Collateral Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party); (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.;
Appears in 1 contract
Samples: Loan and Security Agreement (BlueLinx Holdings Inc.)
Inventory Covenants. With respect to the Inventory: Inventory (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records itemizing and describing the kind, type, quality and quantity of Inventory and such Borrower's cost therefor, in a manner each case consistent with its current practices as of the records reviewed by Agent prior to the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliable, consistent and accurate stock ledger inventory system at the Retail Division), hereof; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after during the existence of an Event of Default, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except (i) for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except business, (ii) to move Inventory directly from one location set forth or permitted herein to another such location and except location, (iii) for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinherein or (iv) to an outside processor for processing; (d) upon Agent's request, Borrowers Borrower shall, at their expense, no more than one (1) time in any twelve (12) month periodperiod (or twice in any twelve (12) month period in respect of core Inventory), but at any time or times as Agent may request on or after during the existence of an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably by an independent appraiser acceptable to Agent and by applying an appraiser acceptable approach to Agentvaluation which is consistent to the approach used in the appraisals of Borrowers' Inventory prepared for Agent prior to the date hereof, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of the one hand, and Borrowers and Guarantors, on Inventory or other Collateral constitutes farm products or the other hand, proceeds thereof; (g) each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (gh) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (hi) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (kj) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Administrative Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (Delco Remy International Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals there from and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Guarantor shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Guarantor's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon AgentLender's request, Borrowers Guarantor shall, at their its expense, no more than one four (14) time times in any twelve (12) month period, but at any time or times as Agent Lender may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors Guarantor shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers except in the ordinary course of business and Guarantors then only on prompt reporting thereof to Lender Guarantor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors Guarantor shall keep the Inventory in good and marketable condition, subject to normal deterioration of produce, deli and bakery food products, expired foods, and products with short expiration dates or shelf-life; and (i) upon Agent's requestexcept in the ordinary course of business and then only on prompt report thereof to Lender, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Guarantor shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to the Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) the Borrowers and Guarantors shall, or a third party inventory counting service on behalf shall continue their current practices for conducting physical counts of Borrowers and Guarantors shall, conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that distribution centers and the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that retail stores but shall also conduct such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the of such Inventory of the Distribution Division, but in each case at any time or times as the Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply the Agent with a report in the form and with such specificity as may be reasonably satisfactory to the Agent concerning such physical count; (c) the Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted hereinin the Security Documents, without the prior written consent of the Agent, except for sales, returns sales or transfers other dispositions of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon the Agent's ’s request, the Borrowers shall, at their expense, no more than one three (13) time times in any twelve (12) month period, but at any time or times as the Agent may request on or after an Event of DefaultDefault or at any time Excess Availability is less than $150,000,000, and in any event at any time at the expense of the Lenders, deliver or cause to be delivered to the Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to the Agent and by an appraiser acceptable to the Agent, addressed to the Agent and Lenders and upon which the Agent and Lenders are expressly permitted to rely; (e) the Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition none of the Inventory or other Collateral constitutes farm products (but nothing contained herein shall be construed as defined in the basis for any liability of any Borrower UCC) or Guarantor as to any third party)the proceeds thereof; (g) the Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis upon which entitles the customer has a right to return or may obligate obligates any Borrower or Guarantor to repurchase such Inventory (it being acknowledged that this does not include discretionary decisions on the part of the Borrowers and Guarantors to repurchase Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers); (h) the Borrowers and Guarantors shall keep maintain current rent payments (within applicable grace periods contained in the leases) at all locations that contain Inventory in good and marketable condition; and (i) upon the Borrowers and the Guarantors shall provide Agent with a weekly report of new purchases of Inventory consisting of produce, dairy, meat and seafood or other categories or departments of Inventory as designated by the Agent's request; in the event that Agent determines Inventory turnover or the nature, Borrowers shallquality, at their expensequantity, conduct through an inventory counting service acceptable to Agent, a physical count gross margin or mix of the Inventory of has deteriorated, Agent shall, in its sole discretion, have the Retail Division and the United Wholesale Division in form, scope and methodology acceptable right to Agent (but only to the extent that establish a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approvalReserve.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower Obligor shall and Guarantor Parent shall cause each Additional L/C Debtor to at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Obligors’ cost therefor and accurate stock ledger inventory system at the Retail Division), withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Obligors shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory year (at which representatives of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequentlypresent) and at least once each year, whether through periodic cycle counts such time or otherwise, times as to the Inventory of the Distribution Divisionis consistent with current practices, but in each case at any time or times as Agent may request on or after an Event of DefaultDefault has occurred and is continuing in accordance with clause (e) below, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors Obligors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except except: (i) for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except any Obligor’s business, (ii) to move Inventory directly from one location set forth or permitted herein to another such location and except location, (iii) for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor Obligors which is in transit to the locations set forth or permitted herein, and (iv) in connection with any other transactions or dispositions permitted by this Agreement; (d) upon Agent's ’s request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, shall deliver or cause to be delivered to Agent 67 written reports or appraisals as to the Inventory of Obligors in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; provided, that, (i) Borrowers acknowledge and agree that such Inventory reports and appraisals shall be requested by Agent and shall be delivered by Borrowers with at least the Required Frequency and may be requested by Agent and shall be delivered by Borrowers at any time following the occurrence and during the continuance of an Event of Default; and (ii) all such Inventory reports and appraisals shall be at the expense of Borrowers, except for Inventory reports and appraisals in excess of the Required Frequency, provided, that, all such Inventory reports and appraisals shall be at the expense of Borrowers at any time that an Event of Default shall exist or shall have occurred and be continuing; (e) after the occurrence and during the continuance of an Event of Default, Borrowers and Guarantors shall produceshall, useat their expense, store and maintain conduct through RGIS Inventory Specialists, Inc. or another inventory counting service reasonably acceptable to Agent, a physical count of the Inventory with all reasonable care in form, scope and caution methodology acceptable to Agent, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation in accordance with applicable standards a form reasonably satisfactory to Agent that appropriate adjustments have been made to the inventory records of any insurance and in conformity with applicable laws in all material respects (including Obligors to reconcile the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto)inventory count to Obligors’ inventory records; (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes Obligors assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors each Obligor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor Obligors to repurchase such Inventory; Inventory except for the right of return given to retail customers of Borrowers Obligors in the ordinary course of the business and of Obligors in accordance with the then current return policy of BorrowersObligor; (h) Borrowers and Guarantors Obligors shall keep the Inventory in good and marketable conditioncondition (taken as a whole); and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has Obligors shall not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval, except for the sale of lines other than apparel to the extent such Inventory is reported to Agent in accordance with the terms hereof.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Borrowers shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent each Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily or weekly withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct (i) a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and (ii) test counts of inventory at any time or times as Lender may request utilizing a third party service therefore designated by Lender, and promptly following any such physical inventory and test counts of inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical countcount and test counts; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its a Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon AgentLender's request, Borrowers shall, at their expense, no more than one (1) time four times in any twelve (12) month period, but at any time or times as Agent Lender may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) except in the ordinary course of business, and then only on prompt reporting thereof to Lender, Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any a Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition, subject to normal deterioration of produce, deli and bakery food products, expired foods, and products with short expiration dates or shelf-life; and (i) upon Agent's requestexcept in the ordinary course of business and then only on prompt reporting thereof to Lender, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (Nutritional Sourcing Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of Inventory, the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliable, consistent cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, each Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors each Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its such Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such each Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon AgentLender's request, Borrowers shall, at their expense, no more than one four (14) time times in any twelve (12) month period, but at any time or times as Agent Lender may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Lender written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser reasonably acceptable to AgentLender, addressed to Agent and Lenders Lender and upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors each Borrower shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors each Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; , except (i) for the right of return given by Borrowers to retail its customers of Borrowers in the ordinary course of business and in accordance consistent with the then current return policy practices of BorrowersBorrowers as of the date hereof; and (ii) sales to customers on consignment in the ordinary course of business of such Borrower consistent with the current practices of Borrowers in effect on the date hereof, provided, that, (A) a report of such Inventory is provided by Borrowers to Lender pursuant to Section 7.1 hereof and (B) in no event shall the aggregate dollar amount of all such Inventory so sold exceed $2,500,000 at any time; (h) Borrowers and Guarantors each Borrower shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has each Borrower shall not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approvalapproval without including such Inventory in a report of such Inventory provided by Borrowers to Lender pursuant to Section 7.1 hereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Pep Boys Manny Moe & Jack)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Parent shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Parent's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers at Lender's request but no more than once a year if no Event of Default exists or has occurred and Guarantors shallis continuing or, or a third party inventory counting service on behalf of Borrowers and Guarantors shallif Revolving Loans are outstanding, upon Lender's reasonable request from time to time Parent shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers upon Lender's request but no more than once a year if no Event of Default exists or has occurred and Guarantors is continuing, or, if Revolving Loans are outstanding, upon Lender's reasonable request from time to time Parent shall, at its expense, deliver or cause to be delivered to Lender appraisals as to the Inventory in form, scope and methodology satisfactory to the Lender and from an appraiser satisfactory to the Lender and addressed to Lender or upon which Lender is expressly permitted to rely; (d) Parent shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Parent's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to relylocation; (e) Borrowers and Guarantors Parent shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor Parent assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors Parent shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Parent Borrower or Guarantor to repurchase such Inventory; except for the right of return given Inventory other than pursuant to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of BorrowersParent's standard warranty provisions; (h) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Parent shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Samples: Loan and Security Agreement (Ultralife Batteries Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower Obligor shall and Guarantor Parent shall cause each Additional L/C Debtor to at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Obligors’ cost therefor and accurate stock ledger inventory system at the Retail Division), withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Obligors shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory year (at which representatives of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequentlypresent) and at least once each year, whether through periodic cycle counts such time or otherwise, times as to the Inventory of the Distribution Divisionis consistent with current practices, but in each case at any time or times as Agent may request on or after an Event of DefaultDefault has occurred and is continuing in accordance with clause (e) below, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors Obligors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except except: (i) for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except any Obligor’s business, (ii) to move Inventory directly from one location set forth or permitted herein to another such location and except location, (iii) for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor Obligors which is in transit to the locations set forth or permitted herein, and (iv) in connection with any other transactions or dispositions permitted by this Agreement; (d) upon Agent's ’s request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, shall deliver or cause to be delivered to Agent 67 written reports or appraisals as to the Inventory of Obligors in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; provided, that, (i) Borrowers acknowledge and agree that such Inventory reports and appraisals shall be requested by Agent and shall be delivered by Borrowers with at least the Required Frequency and may be requested by Agent and shall be delivered by Borrowers at any time following the occurrence and during the continuance of an Event of Default; and (ii) all such Inventory reports and appraisals shall be at the expense of Borrowers, except for Inventory reports and appraisals in excess of the Required Frequency, provided, that, all such Inventory reports and appraisals shall be at the expense of Borrowers at any time that an Event of Default shall exist or shall have occurred and be continuing; (e) after the occurrence and during the continuance of an Event of Default, Borrowers and Guarantors shall produceshall, useat their expense, store and maintain conduct through RGIS Inventory Specialists, Inc. or another inventory counting service reasonably acceptable to Agent, a physical count of the Inventory with all reasonable care in form, scope and caution methodology acceptable to Agent, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation in a form reasonably satisfactory to Agent (or in a form substantially similar to the confirmation most recently delivered to and accepted by Agent in accordance with applicable standards this Section) that appropriate adjustments have been made to the inventory records of any insurance and in conformity with applicable laws in all material respects (including Obligors to reconcile the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto)inventory count to Obligors’ inventory records; (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes Obligors assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors each Obligor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor Obligors to repurchase such Inventory; Inventory except for the right of return given to retail customers of Borrowers Obligors in the ordinary course of the business and of Obligors in accordance with the then current return policy of BorrowersObligor; (h) Borrowers and Guarantors Obligors shall keep the Inventory in good and marketable conditioncondition (taken as a whole); and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has Obligors shall not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval, except for the sale of lines other than apparel to the extent such Inventory is reported to Agent in accordance with the terms hereof.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: Inventory (other than Inventory that is an Excluded Asset): (a) each Borrower and Guarantor Debtor shall at all times maintain inventory records reasonably satisfactory to Collateral Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent such Debtor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, each Debtor shall conduct a physical count of the such Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Collateral Agent may reasonably request (but not more than once per year) on or after an Event of Default, and promptly following any such physical inventory shall supply Collateral Agent with a report in the form and with such specificity as may be reasonably satisfactory to Collateral Agent concerning such physical count; (c) Borrowers and Guarantors no Debtor shall not remove any such Inventory from the locations set forth or permitted herein, without the prior written consent of Perfection Agent, except for sales, returns sales and movement or transfers transport of such Inventory in the ordinary course of its such Debtor’s business that are reported to Agent in accordance with the terms hereof and except to move such Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent's request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors each Debtor shall produce, use, store and maintain the Inventory such Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (fe) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor Debtor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)such Inventory; (gf) Borrowers and Guarantors no Debtor shall not sell such Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor such Debtor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers Inventory(other than in the ordinary course of business and in accordance consistent with the then current return policy of Borrowerspast practices); (hg) Borrowers and Guarantors each Debtor shall keep the such Inventory in good and marketable condition; and (ih) upon Agent's request, Borrowers no Debtor shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofCollateral Agent, acquire or accept any such Inventory on consignment or approvalapproval (other than in the ordinary course of business consistent with past practices).
Appears in 1 contract
Samples: Security Agreement (Atlantic Express Transportation Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lenders and Lenders' Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory with respect to Inventory counting service on behalf of Borrowers and Guarantors shall, (i) each Borrower shall conduct a physical count of the its Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic unless such Borrower's cycle counts or otherwise, of Inventory during such year are reasonably acceptable to Lender as to the scope, methodology and frequency and are at least ninety-five (95%) percent accurate when compared with such Borrower's Inventory of the Distribution Divisionaccounting records, but in each case (ii) Borrowers shall conduct a physical inventory at any time or times as Lenders' Agent may request on or after and during the continuance of an Event of Default, and (iii) promptly following any such physical inventory or each cycle count, upon request by Lenders' Agent, each Borrower shall supply Lenders' Agent with a report in the form and with such specificity as may be reasonably satisfactory to Lenders' Agent and Lenders concerning such physical count or cycle count; (c) Borrowers and Guarantors no Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Lenders' Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its such Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon request by Lenders' Agent's request, Borrowers each Borrower shall, at their its expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Lenders' Agent or either Lender may request on or after and during the continuance of an Event of Default, deliver or cause to be delivered to Lenders' Agent 67 written reports of appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Lenders' Agent and by an appraiser acceptable to AgentLenders, addressed to Lenders' Agent and Lenders and or upon which Lenders' Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors each Borrower shall produce, use, store and maintain the Inventory its Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended amended, and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)its Inventory; (g) Borrowers and Guarantors no Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; , except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowerspast practices or policies previously disclosed in writing to Lenders' Agent; (h) Borrowers and Guarantors each Borrower shall keep the its Inventory in good and marketable conditionsaleable condition except for Inventory, separately reported to Lender, as to which it is commercially uneconomical to do so or which is obsolete (all Inventory so reported to be excluded from Eligible Inventory); and (i) upon Agent's request, Borrowers no Borrower shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLenders' Agent, acquire or accept any Inventory on consignment or approval, except if the acquisition or acceptance of any such Inventory so acquired is separately reported in writing to Lenders' Agent upon receipt thereof by such Borrower, and provided such Inventory is readily identifiable or is segregated from other Inventory (but Lenders' Agent may, in its discretion, establish Availability Reserves to cover possible claims by the consignor as to such consigned Inventory or the products or the proceeds thereof).
Appears in 1 contract
Inventory Covenants. With respect to the InventoryInventory of any Borrower Party that is included by the Borrower Representative as Eligible Inventory or Eligible Machinery-in-Process in the calculation of the Borrowing Base: (a) each such Borrower and Guarantor Party shall at all times maintain inventory records reasonably satisfactory to Agent (it being acknowledged that Agent is not aware of any inventory records that are not reasonably satisfactory), keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent such Borrower Party’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, such Borrower Parties shall conduct a physical count of the such Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Defaultreasonably request, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical countcount (it being acknowledged that Agent is not aware of any current practices that are not reasonably satisfactory); (c) Borrowers and Guarantors such Borrower Parties shall not remove any such Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of such Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move such Inventory directly from one location set forth or permitted herein to another such location and except for such Inventory shipped from the manufacturer thereof to such Borrower or Guarantor Party which is in transit to the locations set forth or permitted herein; (d) upon Agent's ’s request, Borrowers the Borrower Parties shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the such Inventory in form, scope and methodology reasonably acceptable to Agent (and consistent with the methodology used by Continental Plants) by Continental Plants or an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors such Borrower Parties shall produce, use, store and maintain the such Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on none of such Inventory shall constitute farm products or the one hand, and Borrowers and Guarantors, on the other hand, proceeds thereof; (g) each such Borrower and Guarantor Party assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)such Inventory; (gh) Borrowers and Guarantors such Borrower Parties shall not sell such Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any such Borrower or Guarantor Party to repurchase such Inventory; except for the right of return given to retail customers of Borrowers Inventory (unless such Inventory may be returned only if it is not damaged and is resalable in the ordinary normal course of business and in accordance with the then current return policy of Borrowersbusiness); (hi) Borrowers and Guarantors such Borrower Parties shall keep the such Inventory in good and marketable condition; and (ij) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower Parties shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower Representative to Agent pursuant to Section 7.1(aparagraph (a) of Annex F hereof, acquire or accept any such Inventory on consignment or approvalapproval outside the ordinary course of business.
Appears in 1 contract
Samples: Credit Agreement (Milacron Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping in all material respects correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of Inventory, the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliable, consistent cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, each Borrower shall conduct a physical count of the its Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or and after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors each Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except (i) for sales, returns or transfers sales of Inventory in the ordinary course of its the business that are reported to Agent in accordance with the terms hereof of such Borrower and except (ii) to move Inventory directly from one location of a Borrower set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to of such Borrower or Guarantor which is any other Borrower (so long as a financing statement between Lender, as secured party (as to assets of US Borrowers) covering such Inventory has previously been recorded in transit to the locations set forth or permitted hereinappropriate governmental offices of the jurisdiction of such location); (d) upon AgentLender's request, Borrowers shall, at their expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent Lender may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders Lender, and upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors each Borrower shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor will promptly notify Lender in writing if any creditor of a Borrower imposes retention of title provisions on such Borrower as part of its conditions of supply to such Borrower in addition to those reported to Lender pursuant to Section 7.1(a)(i); (g) each Borrower assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory Inventory, (but nothing contained herein shall be construed as the basis for any liability of any h) each Borrower or Guarantor as to any third party); (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any a Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (hi) Borrowers and Guarantors each Borrower shall keep the Inventory in good and marketable condition; and (ij) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has each Borrower shall not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approvalapproval unless such Inventory is marked as being consigned and segregated from the other Inventory of Borrowers.
Appears in 1 contract
Samples: Loan and Security Agreement (Safety Components International Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping in all material respects correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of Inventory, the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliable, consistent cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers by no later than March 31, 2003, the books and Guarantors shall, records of each Borrower and Guarantor shall be reconciled and adjusted to reflect the results of the 2002 year-end physical inventory and all reports with respect to Inventory provided by any Borrower or a third party inventory counting service Guarantor to Agent and Lenders shall be based on behalf the amount of Borrowers the Inventory after giving effect to such reconciliation and Guarantors shall, adjustment; (c) each Borrower and Guarantor shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on such Borrower and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and Guarantor at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (cd) Borrowers each Borrower and Guarantors Guarantor shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except (i) for sales, returns or transfers sales of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except such Borrower’s or Guarantor’s business, (ii) to move Inventory directly from one location of such Borrower set forth or permitted herein to another such location of such Borrower or Guarantor or any other Borrower or Guarantor (so long as a financing statement between Agent as secured party and except such other Borrower or Guarantor, as debtor, covering such Inventory has previously been recorded in the appropriate governmental offices of the jurisdiction of such location), provided, that, in no event shall the Inventory and Equipment located in Switzerland and/or Austria have an aggregate value in excess of $1,000,000 at any time and (iii) for Inventory shipped from the manufacturer thereof to such any Borrower or Guarantor or to any Borrower’s or Guarantor’s customer which is in transit from such manufacturer to the locations set forth or permitted hereinherein or to such customer; (de) upon Agent's ’s request, Borrowers and Guarantors shall, at their expense, no more than one (1) time twice in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of DefaultDefault and for so long as the same is continuing, deliver or cause to be delivered to Agent 67 written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser reasonably acceptable to Agent, addressed to Agent and Lenders Lenders, and upon which Agent and Lenders are expressly permitted to rely; (ef) Borrowers each Borrower and Guarantors Guarantor shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (fg) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed Inventory, except for liabilities incurred by a Lender due to acts or omissions of such Lender which constitute gross negligence or wilful misconduct as the basis for any liability determined pursuant to a final non-appealable order of any Borrower or Guarantor as to any third party)a court of competent jurisdiction; (gh) Borrowers each Borrower and Guarantors Guarantor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any such Borrower or Guarantor to repurchase such Inventory; Inventory (except for the right of return given to retail of customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowersfor Inventory which is defective or non-conforming); (hi) Borrowers each Borrower and Guarantors Guarantor shall keep the Inventory in good and marketable conditioncondition (other than obsolete Inventory); and (ij) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division each Borrower and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Guarantor shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofAgent, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: , (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shallshall conduct cycle counts of the Inventory throughout each year, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, but shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its a Borrower’s business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's request, Borrowers each Borrower shall, at their its expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on upon the occurrence or after during the existence of an Event of Default, deliver or cause to be delivered to Agent 67 written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors each Borrower shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; Inventory except for the right of return given to retail customers of Borrowers in such Borrower consistent with its current policies as of the ordinary course of business and in accordance with the then current return policy of Borrowersdate hereof; (h) Borrowers and Guarantors each Borrower shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofAgent, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Borrowers shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent each Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily or weekly withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct (i) a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and (ii) test counts of inventory at any time or times as Lender may request utilizing a third party service therefore designated by Lender, and promptly following any such physical inventory and test counts of inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical countcount and test counts; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its a Borrower’s business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon AgentLender's request, Borrowers shall, at their there expense, no more than one (1) time four times in any twelve (12) month period, but at any time or times as Agent Lender may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes shall assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any a Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; , and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Borrowers shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrowers' cost therefor and accurate stock ledger inventory system at the Retail Division), (b) daily withdrawals and drawdowns therefrom and additions thereto; Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, in SCHEDULE 8.3 to the Agreement without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrowers' business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein in SCHEDULE 8.3 to the Agreement to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon Agent's request, Borrowers shall, at their expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and or upon which Agent and Lenders are is expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes assume all responsibility and liability arising from or relating to the production, storage, transportation, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor Borrowers to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofAgent, acquire or accept any Inventory on consignment or approval, other than pursuant to the Processing Agreement; (j) any time after, and during any period of time that, the Excess Availability is less than $25,000,000, Borrowers shall permit Agent or its agents, at Borrowers' expense, to conduct a physical count of Inventory in storage tanks, wherever located, on a quarterly basis, and (k) any time after, and during any period of time that, the Excess Availability is less than $10,000,000, Borrowers shall permit Agent or its agents, at Borrowers' expense, to conduct a physical count of Inventory in storage tanks, wherever located, on a monthly basis.
Appears in 1 contract
Samples: Loan and Security Agreement (Crown Central Petroleum Corp /Md/)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrower's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, Borrower shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors Borrower shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrower's business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon AgentLender's request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, Borrower shall, at its expense, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors Borrower shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors Borrower shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors Borrower shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors Borrower shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Borrowers shall at all times maintain inventory records reasonably satisfactory to Lender, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in such practices as a result of the establishment of a reliableInventory, consistent Borrowers' cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent Lender may request on or after an Event of Default, and promptly following any such physical inventory shall supply Agent Lender with a report in the form and with such specificity as may be reasonably satisfactory to Agent Lender concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of AgentLender, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrowers' business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinlocation; (d) upon AgentLender's request, Borrowers shall, at their expense, no more than one (1) time in any twelve (12) month period, but at any time or times as Agent Lender may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 Lender written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent Lender and by an appraiser acceptable to AgentLender, addressed to Agent and Lenders and Lender or upon which Agent and Lenders are Lender is expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes assume all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor Borrowers to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofLender, acquire or accept any Inventory on consignment or approval.
Appears in 1 contract
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor Debtor shall at all times maintain inventory records reasonably satisfactory to US Collateral Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Debtor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, each Debtor shall conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as US Collateral Agent may request on or after an while Event of DefaultDefault has occurred and is continuing, and promptly following any such physical inventory counts shall supply US Collateral Agent with a report in the form and with such specificity as may be reasonably satisfactory to US Collateral Agent concerning such physical countcounts; (c) Borrowers and Guarantors no Debtor shall not remove any Inventory from the locations set forth on the Information Certificate or otherwise permitted hereinherein or in the US Loan Agreement, without the prior written consent of US Collateral Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its such Debtor’s business that are reported to Agent or as provided in accordance with the terms hereof US Loan Agreement and except to move Inventory (i) directly from one location set forth or permitted herein to another such location and except or (ii) to an outside processor for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted hereinprocessing; (d) upon US Collateral Agent's ’s request, Borrowers each Debtor shall, at their its expense, no more than one (1) time once in any twelve (12) month period, but at any time or times as US Collateral Agent may request on or after an while Event of DefaultDefault has occurred and is continuing, deliver or cause to be delivered to US Collateral Agent 67 written reports or appraisals as to the Inventory in form, scope and methodology reasonably acceptable to US Collateral Agent and by an appraiser acceptable to US Collateral Agent, addressed to US Collateral Agent and Lenders and or upon which US Collateral Agent and Lenders are is expressly permitted to rely; (e) Borrowers and Guarantors each Debtor shall produce, use, store and maintain the Inventory Inventory, with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including including, but not limited to, the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor Debtor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party)Inventory; (g) Borrowers and Guarantors no Debtor shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor Debtor to repurchase such Inventory; Inventory except for as may be otherwise permitted by the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of BorrowersUS Loan Agreement; (h) Borrowers and Guarantors each Debtor shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers no Debtor shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereofUS Collateral Agent, acquire or accept any Inventory on consignment or approvalapproval except as may be permitted by the US Loan Agreement.
Appears in 1 contract
Samples: General Security Agreement (Mad Catz Interactive Inc)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain inventory records reasonably satisfactory to Agent, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower's or Guarantor's cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf of Borrowers and Guarantors shall, shall conduct a physical count of the Inventory at least once each fiscal quarter as either through periodic cycle counts or wall to non-perishable wall counts, so that all Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory subject to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after at any time an Event of DefaultDefault exists or has occurred and is continuing, and promptly following any such physical inventory (whether through periodic cycle counts or wall to wall counts) shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted herein, without the prior written consent of Agent, except for sales, returns or transfers sales of Inventory in the ordinary course of its Borrowers' business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's request, Borrowers shall, at their expense, no more than one three (13) time times in any twelve (12) month period, but at any time or times as Agent may request on or after an Event of Default, deliver or cause to be delivered to Agent 67 written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent and by an appraiser acceptable to Agent, addressed to Agent and Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party); (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis which entitles the customer to return or may obligate any Borrower or Guarantor to repurchase such Inventory; except for the right of return given to retail customers of Borrowers in the ordinary course of business and in accordance with the then current return policy of Borrowers; (h) Borrowers and Guarantors shall keep the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereof) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approval.at
Appears in 1 contract
Samples: Loan and Security Agreement (J Crew Operating Corp)
Inventory Covenants. With respect to the Inventory: (a) each Borrower and Guarantor shall at all times maintain Inventory records reasonably satisfactory to the Co-Collateral Agents, keeping correct and accurate inventory records in a manner consistent with its current practices as itemizing and describing the kind, type, quality and quantity of the date hereof (except to the extent of changes in Inventory, such practices as a result of the establishment of a reliable, consistent Borrower’s or Guarantor’s cost therefor and accurate stock ledger inventory system at the Retail Division), daily withdrawals therefrom and additions thereto; (b) Borrowers and Guarantors shall, or a third party inventory counting service on behalf shall continue their current practices for conducting physical counts of Borrowers and Guarantors shall, conduct a physical count of the Inventory at least once each fiscal quarter as to non-perishable Inventory of the Retail Division (or on and after the establishment of a stock ledger inventory system at the Retail Division that is satisfactory to Borrowers and Agent, two (2) times each year) and once each fiscal four (4) week period of Borrowers and Guarantors (determined in accordance with the current accounting practices of Borrowers and Guarantors as of the date hereof) as to the perishable Inventory of the Retail Division, three (3) times each year as to Inventory of the United Wholesale Division (provided, that, in the event that distribution centers and the United Wholesale Division Assets are not sold pursuant to the United Wholesale Sale Agreements on or before March 31, 2004, Agent may require that retail stores but shall also conduct such physical counts be conducted more frequently) and at least once each year, whether through periodic cycle counts or otherwise, as to the of such Inventory of the Distribution Division, but in each case at any time or times as Agent may request on or after an Event of Default, and promptly following any such physical inventory Inventory shall supply Agent with a report in the form and with such specificity as may be reasonably satisfactory to Agent the Co-Collateral Agents concerning such physical count; (c) Borrowers and Guarantors shall not remove any Inventory from the locations set forth or permitted hereinin the Security Documents, without the prior written consent of AgentAgent (such consent not to be unreasonably withheld or delayed), except for sales, returns sales or transfers other dispositions of Inventory in the ordinary course of its business that are reported to Agent in accordance with the terms hereof and except to move Inventory directly from one location set forth or permitted herein to another such location and except for Inventory shipped from the manufacturer thereof to such Borrower or Guarantor which is in transit to the locations set forth or permitted herein; (d) upon Agent's request, Borrowers shall, at their expense, no more than one two (12) time times in any twelve (12) month period, but and in addition, at any time or times as any Co-Collateral Agent may request on or after the occurrence and during the continuance of an Event of DefaultDefault or at any time Excess Availability is less than $100,000,000, and in any event at any time at the expense of the Lenders, deliver or cause to be delivered to Agent 67 Co-Collateral Agents (upon any Co-Collateral Agent’s request) written appraisals as to the Inventory in form, scope and methodology reasonably acceptable to Agent the Co-Collateral Agents and by an appraiser acceptable to Agent, addressed to Agent and for the benefit of Lenders and upon which Agent and Lenders are expressly permitted to rely; (e) Borrowers and Guarantors shall produce, use, store and maintain the Inventory with all reasonable care and caution and in accordance with applicable standards of any insurance and in conformity with applicable laws in all material respects (including the requirements of the Federal Fair Labor Standards Act of 1938, as amended and all rules, regulations and orders related thereto); (f) as between Agent and Lenders, on the one hand, and Borrowers and Guarantors, on the other hand, each Borrower and Guarantor assumes all responsibility and liability arising from or relating to the production, use, sale or other disposition of the Inventory (but nothing contained herein shall be construed as the basis for any liability of any Borrower or Guarantor as to any third party); (g) Borrowers and Guarantors shall not sell Inventory to any customer on approval, or any other basis upon which entitles the customer has a right to return or may obligate obligates any Borrower or Guarantor to repurchase such Inventory; except for Inventory (it being acknowledged that this does not include discretionary decisions on the right of return given to retail customers part of Borrowers in the ordinary course of business and in accordance with the then current return policy of BorrowersGuarantors to repurchase Inventory); and (hg) Borrowers and Guarantors shall keep maintain current rent payments (within applicable grace periods contained in the Inventory in good and marketable condition; and (i) upon Agent's request, Borrowers shall, at their expense, conduct through an inventory counting service acceptable to Agent, a physical count of the Inventory of the Retail Division and the United Wholesale Division in form, scope and methodology acceptable to Agent (but only to the extent that a physical count that is acceptable to Borrowers and Agent has not been conducted by such inventory counting service within the immediately preceding fiscal quarter so long as no Default or Event of Default shall exist or have occurred or four (4) fiscal week period of Borrowers and Guarantors (determined in accordance with the current accounting principles of Borrowers and Guarantors as of the date hereofleases) at any time a Default or Event of Default shall exist or have occurred, the results of which shall be reported directly by such inventory counting service to Agent and Borrowers shall promptly deliver confirmation to Agent all locations that appropriate adjustments have been made to the inventory records of Borrowers to reconcile the inventory count to the inventory records of Borrowers; (k) Borrowers and Guarantors shall not, without prior written notice to Agent or the specific identification of such Inventory in a report with respect thereto provided by Lead Borrower to Agent pursuant to Section 7.1(a) hereof, acquire or accept any Inventory on consignment or approvalcontain Inventory.
Appears in 1 contract
