Financial Statements and Other Information The Borrower will furnish to the Administrative Agent and each Lender:
(a) within ninety (90) days after the end of each fiscal year of the Borrower, the audited consolidated balance sheet and related statements of operations, changes in net assets or stockholders’ equity and cash flows of the Borrower and its Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other independent public accountants of recognized national standing to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; provided that, the requirements set forth in this clause (a) may be fulfilled by providing to the Administrative Agent and the Lenders the report of the Borrower to the SEC on Form 10-K for the applicable fiscal year;
(b) within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower, the consolidated balance sheet and related statements of operations, changes in net assets or stockholders’ equity and cash flows of the Borrower and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for (or, in the case of the statement of assets and liabilities or balance sheet, as of the end of) the corresponding period or periods of the previous fiscal year, all certified by a Financial Officer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; provided that, the requirements set forth in this clause (b) may be fulfilled by providing to the Lenders the report of the Borrower to the SEC on Form 10-Q for the applicable quarterly period;
(c) concurrently with any delivery of financial statements under clause (a) or (b) of this Section, a certificate of a Financial Officer of the Borrower (i) certifying as to whether the Borrower has knowledge that a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.01, 6.02, 6.04, 6.05 and 6.07 and (iii) stating whether any material change in GAAP as applied by (or in the application of GAAP by) the Borrower has occurred since the date of the most recent audited financial statements delivered pursuant to Section 5.01(a) and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
Financial Statements and Other Reports Company will maintain, and cause each of its Subsidiaries to maintain, a system of accounting established and administered in accordance with sound business practices to permit preparation of financial statements in conformity with GAAP. Company will deliver to Administrative Agent and Lenders:
(i) Quarterly Financial: as soon as available and in any event within 45 days after the end of each Fiscal Quarter, the consolidated balance sheets of Company and its Subsidiaries as at the end of such Fiscal Quarter and the related consolidated statements of operations, changes in stockholders’ equity and cash flows of Company and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year, all in reasonable detail and certified by the chief financial officer of Company that they fairly present, in all material respects, the financial condition of Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments;
(ii) Year-End Financial: as soon as available and in any event within 90 days after the end of each Fiscal Year, the consolidated balance sheets of Company and its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements of operations, changes in stockholders’ equity and cash flows of Company and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year, with a report thereon of PricewaterhouseCoopers LLP or other independent certified public accountants of recognized national standing selected by Company and satisfactory to Administrative Agent, which report shall be un-qualified, shall express no doubts about the ability of Company and its Subsidiaries to continue as a going concern, and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial position of Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such financial statements) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(iii) Officer’s and Compliance Certificates: together with each delivery of the consolidated financial statements of Company and its Subsidiaries pursuant to subdivisions (i) and (ii) above, (a) an Officer’s Certificate of Company stating that the signer has reviewed the terms of this Agreement and has made, or caused to be made under his/her supervision, a review in reasonable detail of the transactions and condition of Company and its Subsidiaries during the accounting period covered by such financial statements and that such review has not disclosed the existence during or at the end of such accounting period, and that the signer does not have knowledge of the existence as at the date of such Officer’s Certificate, of any condition or event that constitutes an Event of Default or Potential Event of Default, or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action Company has taken, is taking and proposes to take with respect thereto; and (b) a Compliance Certificate demonstrating in reasonable detail compliance during and at the end of the applicable accounting periods with the restrictions contained in Section 7;
Financial Reports and Other Information (a) The Borrower will maintain a system of accounting in accordance with GAAP and will furnish to the Lenders and their respective duly authorized representatives such information respecting the business and financial condition of the Borrower and its Subsidiaries as any Lender may reasonably request. The Borrower shall deliver (via email or otherwise) to the Administrative Agent in form and detail satisfactory to the Administrative Agent, with copies for each Lender in form and substance satisfactory to them, each of the following:
(i) as soon as available and in any event within 95 days after the end of each fiscal year of Borrower, consolidated statements of income, common stockholders’ equity, cash flows, and income taxes of Borrower for such year and the related consolidated balance sheet and statement of capitalization at the end of such year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, and accompanied by an opinion thereon of independent certified public accountants of recognized national standing, which opinion shall state that said financial statements fairly present the consolidated financial position and results of operations and cash flows of Borrower and its consolidated Subsidiaries as at the end of, and for, such fiscal year, and otherwise be without any Impermissible Qualification; provided that if Borrower files its annual report on Form 10-K for the applicable annual period, and such annual report contains the financial statements and accountants certifications, opinions and statements described above, Borrower may satisfy the requirements of this Section 7.6(a)(i) by delivering a copy of such annual report to each Lender;
(ii) as soon as available and in any event within 50 days after the end of each of the first three fiscal quarterly periods of each fiscal year of Borrower, consolidated statements of income of Borrower for such period and for the period from the beginning of the respective fiscal year to the end of such period, and consolidated cash flows for the period from the beginning of the respective fiscal year to the end of such period, and the related consolidated balance sheet as at the end of such period, all of the foregoing prepared by Borrower in reasonable detail in accordance with GAAP and certified by Borrower’s Chief Financial Officer, Vice President-Controller or Vice President-Treasurer as fairly presenting the financial condition as at the dates thereof and the results of operations for the periods covered thereby (except for the absence of footnotes and year-end adjustments); provided that if Borrower files a Form 10-Q for the applicable quarterly period, and such quarterly report contains the financial statements and certifications described above, the Borrower may satisfy the requirements of this Section 7.6(a)(ii) by delivering a copy of such quarterly report to each Lender.
(b) Each financial statement furnished to the Lenders pursuant to subsection (a) of this Section 7.6 shall be accompanied by a Compliance Certificate in the form of Exhibit B hereto signed by the Chief Financial Officer, Vice President - Controller or Vice President-Treasurer of the Borrower. Information required to be delivered pursuant to subsections (a), (d) and (e) of this Section 7.6 shall be deemed to have been delivered on the date on which the Borrower provides notice to the Administrative Agent (via email or otherwise) that such information has been posted on Nicor’s website on the Internet at xxx.xxxxx.xxx, at xxx.xxx.xxx/xxxxx/searchedgar/webusers.htm or at another website identified in such notice and accessible by the Lenders without charge, provided that (i) such notice may be included in a Compliance Certificate in the form of Exhibit B and (ii) the Borrower shall deliver paper copies of the information required to be delivered pursuant to subsections (a), (d) and (e) of this Section 7.6 to any Lender that requests such delivery.
(c) Borrower will promptly (and in any event within five Business Days after an officer of the Borrower has knowledge thereof) give notice to the Administrative Agent of (i) any Default or Event of Default of which the Borrower has knowledge, including in such notice a description of the same in reasonable detail, and indicating what action is being undertaken with respect to such Default or Event of Default; and (ii) any event or condition which in the opinion of the Borrower could reasonably be expected to have a Material Adverse Effect.
(d) Promptly upon their becoming available, and without duplication of the other materials required to be delivered pursuant to this Agreement, the Borrower will deliver (via email or otherwise) to the Administrative Agent, with copies for each Lender copies of all registration statements and regular periodic reports, if any, which Nicor or the Borrower shall have filed with the SEC (or any governmental agency substituted therefore) or any national securities exchange.
(e) Promptly upon the mailing thereof to the shareholders of Nicor or the Borrower generally, and without duplication of the other materials required to be delivered pursuant to this Agreement, the Borrower will deliver to the Administrative Agent, with copies for each Lender copies of all financial statements, reports and proxy statements so mailed.
(f) Immediately upon becoming aware of the institution of any steps by Nicor, the Borrower, or any other Person to terminate any Pension Plan or the complete or partial withdrawal from any Pension Plan by Nicor or any member of its Controlled Group which could result in a liability to Nicor or any of its Subsidiaries of a liability in excess of $20,000,000, or the failure to make a required contribution to any Pension Plan if such failure is sufficient to give rise to a Lien under Section 302(f) of ERISA securing an amount in excess of $20,000,000, or the taking of any action with respect to a Pension Plan which could result in the requirement that Nicor or the Borrower furnish a bond or other security to the PBGC or such Pension Plan in excess of $20,000,000, or the occurrence of any event with respect to any Pension Plan which could result in the incurrence by Nicor or the Borrower of any material liability, fine or penalty, or any material increase in the contingent liability of Nicor or the Borrower with respect to any post-retirement Welfare Plan benefit, notice thereof and copies of all documentation relating thereto.
(g) From time to time such other information regarding the business or financial condition of the Borrower as the Administrative Agent or a Lender may reasonably request.
Financial and Other Information To provide the following financial information and statements and other information:
(a) Within 90 days following the end of each fiscal year of Borrower, Borrower's consolidated annual financial statements. These financial statements must be audited (with an unqualified opinion) by Ernst & Young, LLP or another nationally recognized firm of independent public accountants reasonably acceptable to Bank and must be accompanied by a management letter prepared by such auditors.
(b) Within 30 days following the end of each calendar month (including the last calendar month in each fiscal year), Borrower's monthly consolidated and consolidating financial statements showing results for that month and for a year to date basis, PROVIDED THAT if no Default or Event of Default has then occurred, following the delivery of Borrower's audited financial statements for the fiscal year ending December 31, 1998, Borrower shall instead, within 45 days following the end of each fiscal quarter (including the last fiscal quarter in each fiscal year) deliver its quarterly consolidated and consolidating financial statements showing results for that fiscal quarter and on a year to date basis. In either case, these financial statements may be Borrower prepared, and shall include a comparison to plan and prior year on a monthly and year to date basis.
(c) If requested by Bank, copies of Borrower's federal income tax return, promptly and in any event within 15 days of filing, and copies of any extensions of the filing date.
(d) Within the period provided for in clause (a) (in relation to Borrower's audited statements and giving effect to any adjustments from the unaudited statements made therein) and promptly and in any event within 45 days following the last day of each fiscal quarter (in relation to the unaudited statements and including the last fiscal quarter in each fiscal year) a compliance certificate signed by an authorized financial officer of Borrower setting forth information and computations (in sufficient detail) to establish (x) that Borrower is in compliance with all financial covenants at the end of the period covered by the financial statements then being furnished, and (y) whether there existed as of the date of such financial statements and whether there exists as of the date of the certificate, any Default or Event of Default under this Agreement and, (iii) if any such Default or Event of Default exists, specifying the nature thereof and the action Borrower is taking and propose to take with respect thereto.
(e) A borrowing base certificate ("Borrowing Base Certificate") setting forth the respective amounts of Acceptable Receivables and Acceptable Inventory and a calculation of the Borrowing Base as of the last day of each month within 20 days after month end and, if requested by Bank copies of the invoices or the record of invoices from each Borrower's and HP UK's sales journal for such Acceptable Receivables, copies of the delivery receipts, purchase orders, shipping instructions, bills of lading and other documentation pertaining to such Acceptable Receivables.
(f) (Statements showing an aging and reconciliation of Borrower's and HP UK's receivables within 20 days after the end of each month.
(g) A statement showing an aging of accounts payable within 20 days after the end of each month.
(h) If Bank requires Borrower and its Subsidiaries to deliver the proceeds of accounts receivable to Bank upon collection by Borrower and its Subsidiaries, a schedule of the amounts so collected and delivered to Bank.
(i) An inventory summary report and listing within 20 days after the end of each month, including a description of the inventory, its location and cost, and such other information and collateral reports as Bank may require.
(j) A listing of the names and addresses, telephone numbers and principal contacts of all debtors obligated upon Borrower's and its Subsidiaries accounts receivable semi-annually within 20 days following the last day of the second and fourth fiscal quarters in each of Borrower's fiscal years.
(k) 30 days prior to each fiscal year end, updated annual financial projections for Borrower and its Subsidiaries through December 31, 2004, and quarterly financial projections through the subsequent fiscal year.
(l) Within 90 days following the Closing Date, an audited opening consolidated balance sheet of Borrower prepared by Ernst & Young LLP.
(m) Promptly upon Bank's request, such other statements, lists of property and accounts, budgets, forecasts or reports as to Borrower as Bank may reasonably request.
(n) Annually and in any event not later than January 1 of each year, commencing with January 1, 1998, an environmental compliance audit prepared by consultants acceptable to Bank, which audit shall (i) be prepared at the sole cost and expense of Borrower and (ii) detail areas of environmental non-compliance, types of environmental permits and licenses required and held by Borrower, and upgrades to programs, permits and licenses required or to be considered by Borrower due to changes in environmental regulations. The environmental compliance audit shall identify, to a degree of certainty "more likely than not" any conditions or operations that meet the foregoing criteria.
(q) Promptly and in any event within 5 days following the filing thereof, copies of Borrower's reports on Form 10-K and Form 10-Q and all other material reports filed by Borrower with the Securities and Exchange Commission.
(r) On a monthly basis until HPUK has vacated the Heathrow Airport location leased from British Airways, not later than the 5th day of each calendar month, (i) a copy of a receipt issued by British Airways for rent paid with respect to that location for that calendar month and (ii) a narrative description of the progress of Borrower's and HP UK's efforts to relocate the operations of HP UK from Heathrow Airport, and an update of the timetable for that relocation.
(s) Promptly upon Bank's request, such other information as Bank may reasonably request.
