THE
SMITH/SIRIUS ACQUISITION TRANSACTIONS (INCLUDING ALL DEBT AND EQUITY ISSUANCES
IN CONNECTION THEREWITH) AND THE PHASE TWO TRANSACTIONS, PRO FORMA EBITDA IS NOT
LESS THAN $95,000,000.
(BB)
ALL LEGAL MATTERS WITH RESPECT TO AND ALL LEGAL DOCUMENTS
(INCLUDING, BUT NOT LIMITED TO, THE LOAN DOCUMENTS) EXECUTED IN CONNECTION WITH
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE SATISFACTORY TO COUNSEL
FOR THE ADMINISTRATIVE AGENT.
The Administrative Agent (acting itself or through its counsel) shall notify
Borrower, the Lenders of the Effective Date, and such notice shall be conclusive
and binding.
Notwithstanding the foregoing, the obligations of Lenders to make
Loans shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.06 hereof) at or prior to 3:00 p.m.,
New York City time, on or prior to August 31, 2007 (and, in the event such
conditions are not so satisfied or waived, the Commitments shall terminate at
such time).
47
ARTICLE V
AFFIRMATIVE COVENANTS
Until the principal of and interest on each Loan and all fees and other amounts
(other than contingent indemnity obligations) payable under the Loan Documents
shall have been paid in full, Borrower covenants and agrees with the Lenders
that:
SECTION 5.01
FINANCIAL STATEMENTS AND OTHER INFORMATION.
(A)
BORROWER SHALL DELIVER TO THE ADMINISTRATIVE AGENT AND THE
LENDERS, AT BORROWER'S SOLE EXPENSE:
(I) AS SOON AS AVAILABLE BUT NO LATER THAN
FORTY-FIVE (45) DAYS AFTER THE END OF EACH FISCAL QUARTER, THE UNAUDITED
CONSOLIDATED FINANCIAL STATEMENTS OF BORROWER AND K-SEA FOR SUCH INTERIM FISCAL
PERIOD, PREPARED IN ACCORDANCE WITH GAAP AND CERTIFIED BY THE FINANCIAL OFFICER
OF BORROWER AND K-SEA, RESPECTIVELY, (II) AS SOON AS AVAILABLE AFTER THE END OF
EACH FISCAL YEAR, ANNUAL FINANCIAL PROJECTIONS OF BORROWER PREPARED IN
ACCORDANCE WITH GAAP BY THE FINANCIAL OFFICER OF BORROWER, USING MONTHLY DATA,
AND (III) AS SOON AS AVAILABLE BUT NO LATER THAN ONE HUNDRED TWENTY (120) DAYS
AFTER THE END OF EACH FISCAL YEAR OR AS REQUIRED UNDER ANY REGULATIONS TO WHICH
BORROWER OR K-SEA IS SUBJECT, THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS
(WITH AN UNQUALIFIED OPINION WITHOUT A GOING CONCERN QUALIFICATION) OF BORROWER
AND K-SEA FOR SUCH FISCAL YEAR, PREPARED AND CERTIFIED BY INDEPENDENT CERTIFIED
PUBLIC ACCOUNTANTS ACCEPTABLE TO LENDERS.
ALL OF THE FOREGOING SHALL BE IN SUCH
FORM AND TOGETHER WITH SUCH INFORMATION WITH RESPECT TO THE BUSINESS OF
BORROWER, AS LENDERS MAY IN EACH CASE REQUEST AS REASONABLY CALCULATED BY
LENDERS TO ENABLE THEM TO CONFIRM AND PROVE ELEMENTS OF THE FINANCIAL
STATEMENTS.
BORROWER SHALL KEEP AND MAINTAIN ITS BOOKS AND RECORDS IN
ACCORDANCE WITH GAAP, CONSISTENTLY APPLIED.
(B)
CONCURRENTLY WITH ANY DELIVERY OF FINANCIAL STATEMENTS UNDER
CLAUSE (A)(I) ABOVE, BORROWER SHALL DELIVER TO LENDERS A CERTIFICATE OF A
FINANCIAL OFFICER OF K-SEA (I) CERTIFYING AS TO WHETHER A DEFAULT HAS OCCURRED
SINCE THE DELIVERY OF THE PREVIOUS SUCH CERTIFICATE OR TO THE DATE HEREOF AND,
IF SUCH A DEFAULT HAS OCCURRED, SPECIFYING THE DETAILS THEREOF AND ANY ACTION
TAKEN OR PROPOSED TO BE TAKEN WITH RESPECT THERETO,