01Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent: (a) as soon as available and in any event within forty-five (45) days after the end of the first three (3) fiscal quarters of each fiscal year (i) the consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such fiscal quarter and (ii) the related consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter and the portion of the fiscal year through the end of such fiscal quarter, in each case prepared in all material respects in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with (iii) a certificate of a Responsible Officer of the Borrower stating that (x) such financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as at such date and (y) the results of operations of the Borrower and its Subsidiaries for the period ended on such date have been prepared in all material respects -68- 268911794 v5 in accordance with GAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that documents required to be furnished pursuant to this Section 8.01(a) shall be deemed furnished on the date that such documents are publicly available on “XXXXX” (with the related certificate separately delivered); (b) as soon as available and in any event within ninety (90) days after the end of each fiscal year (i) the consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such fiscal year and (ii) the related consolidated statements of income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries for such fiscal year, in each case prepared in all material respects in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of Ernst & Young U.S. LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and such report and opinion shall not be subject to any “going concern” or like qualification or exception or emphasis of matter of going concern footnote or any qualification or exception as to the scope of such audit, and in the case of such consolidated financial statements, certified by a Responsible Officer of the Borrower; provided that documents required to be furnished pursuant to this Section 8.01(b) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”; (c) together with the financial statements required pursuant to Section 8.01(a) and (b), a compliance certificate signed by the chief financial or accounting Responsible Officer of the Borrower as of the end of the applicable accounting period (which delivery may be by electronic communication including fax or email and shall be deemed to be an original, authentic counterpart thereof for all purposes) substantially in the form of Exhibit E (a “Compliance Certificate”) including (i) details of any issues that are material that are raised by auditors and any occurrence or existence of any event, circumstance, act or omission that would cause any representation or warranty contained in Section 7.07, Section 7.18 or Section 7.23 to be incorrect in any material respect (or in any respect if such representation or warranty is qualified by materiality or by reference to Material Adverse Effect or Material Adverse Change) if such representation or warranty were to be made at the time of delivery of a Compliance Certificate, and (ii) for any fiscal period when the Minimum Revenue Covenant is in effect, a certification as to whether or not the Borrower is in compliance with the Minimum Revenue Covenant as of the last day of such period; (d) after being prepared by the Borrower and approved by its Board, and promptly following the Administrative Agent’s request therefor, a consolidated financial forecast for the Borrower and its Subsidiaries for the fiscal year to which such forecast relates; provided that, for each fiscal year, on or before the seventy-fifth (75th) day following the beginning of such fiscal year, the Borrower shall prepare, and its Board shall approve such consolidated financial forecast for such fiscal year, and the Borrower shall notify the Administrative Agent promptly after the Board has given such approval; (e) promptly after the same are released, copies of any press release required by U.S. securities laws to be filed with the SEC (excluding, for the avoidance of doubt, marketing press -69- 268911794 v5 releases); provided that documents required to be furnished pursuant to this Section 8.01(e) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”; (f) promptly, and in any event within five (5) Business Days after receipt thereof by an Obligor thereof, copies of each notice or other correspondence received from any securities regulator or exchange to the authority of which the Borrower may become subject from time to time concerning any investigation or possible investigation or other inquiry (other than routine comment letters from the SEC) by such agency regarding financial or other operational results of such Obligor; provided that documents required to be furnished pursuant to this Section 8.01(f) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”; (g) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of each Obligor and its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which any Obligor or its Subsidiaries may file or be required to file with any securities regulator or exchange to the authority of which such Obligor or such Subsidiary, as applicable, may become subject from time to time; provided that documents required to be furnished pursuant to this Section 8.01(g) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”; (h) the information regarding insurance maintained by the Borrower and its Subsidiaries as required under Section 8.05; (i) as soon as possible and in any event within five (5) Business Days after the Borrower obtains knowledge of any Claim related to any Product or inventory involving more than $3,750,000 (or the Equivalent Amount in other currencies), written notice thereof from a Responsible Officer of the Borrower which notice shall include a statement setting forth details of such return, recovery, dispute or claim; (j) together with the delivery of the Compliance Certificate, evidence satisfactory to the Administrative Agent, based upon the Borrower’s bank account statements that the Borrower is in compliance with the Minimum Liquidity Covenant; and (k) such other information respecting the businesses, financial performance, operations condition of the assets or liabilities of the Obligors (including with respect to the Collateral), taken as a whole, as the Administrative Agent may from time to time reasonably request.
Appears in 1 contract
01Financial Statements and Other Information. The Borrower Borrowers will furnish to the Administrative Agent:
(a) as soon as available and in any event within forty-five (45) days after the end of the first three (3) fiscal quarters of each fiscal year (i) the consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such fiscal quarter and (ii) the related consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter and the portion of the fiscal year through the end of such fiscal quarter, in each case prepared in all material respects in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with (iii) a certificate of a Responsible Officer of the Borrower stating that (x) such financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as at such date and (y) the results of operations of the Borrower and its Subsidiaries for the period ended on such date have been prepared in all material respects -68- 268911794 v5 in accordance with GAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that documents required to be furnished pursuant to this Section 8.01(a) shall be deemed furnished on the date that such documents are publicly available on “XXXXX” (with the related certificate separately delivered);
(b) as soon as available and in any event within ninety (90) days after the end of each fiscal year (i) of the Parent Borrower, the audited consolidated balance sheets of the Borrower sheet and its Subsidiaries as of the end of such fiscal year and (ii) the related consolidated statements of incomeearnings, stockholdersshareholders’ equity and cash flows of the Parent Borrower and its Subsidiaries (together with an unaudited reconciliation, reflecting total assets, Inventory, capital expenditures and cash for the Parent Borrower and its Subsidiaries, on the one hand, and the Specified Subsidiaries, on the other hand) as of the end of and for such fiscal year, setting forth in each case prepared in all material respects in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied all reported on by a report and opinion thereon of Ernst & Young U.S. KPMG LLP or another independent registered public accounting firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and such report and opinion shall not be subject to any (without a “going concern” or like qualification or exception or emphasis of matter of going concern footnote or and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly, in all material respects, the financial condition and results of operations and cash flows of the Parent Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) as soon as available and in any event within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Parent Borrower, the consolidated balance sheet and related statements of earnings, shareholders’ equity and cash flows of the Parent Borrower and its Subsidiaries (together with an unaudited reconciliation, reflecting total assets, Inventory, capital expenditures and cash for the Parent Borrower and its Subsidiaries, on the one hand, and the Specified Subsidiaries, on the other hand) 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 such consolidated financial statementsthe balance sheet, as of the end of) the corresponding period or periods of the previous fiscal year, all certified by a Responsible Financial Officer of the Borrower; provided that documents required Parent Borrower as presenting fairly, in all material respects, the financial condition and results of operations and cash flows of the Parent Borrower and its Subsidiaries on a 4879-0244-9248v.7112 US 9692390v.1 CHA715/20025 consolidated basis in accordance with GAAP, subject to be furnished pursuant to this Section 8.01(b) shall be deemed furnished on normal year-end audit adjustments and the date that such documents are publicly available on “XXXXX”absence of certain footnotes;
(c) together concurrently with any delivery of financial statements under clause (a) or (b) of this Section, a certificate executed by a Financial Officer of the Parent Borrower (i) certifying as to whether, to the best knowledge of such Financial Officer (following due inquiry), 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 Section 7.08 (if a Trigger Period is in effect) and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Parent Borrower’s audited financial statements referred to in Section 4.04 and, if any such change has occurred, specifying the effect of such change on the financial statements required pursuant to Section 8.01(aaccompanying such certificate;
(d) and within forty-five (b)45) days after the commencement of each fiscal year of the Parent Borrower, a compliance certificate signed detailed consolidated budget by the chief financial or accounting Responsible Officer quarter for such fiscal year (including a projected consolidated balance sheet and related statements of the Borrower projected operations and cash flow as of the end of and for such fiscal year) and, promptly when available, any significant revisions of such budget;
(e) within five (5) days after the applicable accounting period (which delivery may be by electronic communication including fax or email and shall be deemed to be an originalend of each month, authentic counterpart thereof for all purposes) substantially a certificate in the form of Exhibit E D or any other form reasonably acceptable to the Agent (a “Compliance Borrowing Base Certificate”) including (i) details of any issues that are material that are raised by auditors and any occurrence or existence of any event, circumstance, act or omission that would cause any representation or warranty contained in Section 7.07, Section 7.18 or Section 7.23 to be incorrect in any material respect (or in any respect if such representation or warranty is qualified by materiality or by reference to Material Adverse Effect or Material Adverse Change) if such representation or warranty were to be made at showing the time of delivery of a Compliance Certificate, and (ii) for any fiscal period when the Minimum Revenue Covenant is in effect, a certification as to whether or not the Borrower is in compliance with the Minimum Revenue Covenant Borrowing Base as of the close of business on the last day of the immediately preceding month and supporting information reasonably requested by the Agent in connection therewith (including, in respect of any Borrowing Base Certificate delivered for a month which is also the end of any fiscal quarter of the Parent Borrower, a calculation of Average Quarterly Availability for such periodquarter then ended and an indication of what the Applicable Rate is as a result of such Average Quarterly Availability), each such Borrowing Base Certificate to be certified as complete and correct on behalf of the Borrowers by a Financial Officer of the Parent Borrower; provided, that, at any time an Activation Period exists, a Borrowing Base Certificate (showing the Borrowing Base as of the close of business on the last day of the immediately preceding week) shall be furnished weekly on Wednesday of each week;
(d) after being prepared by the Borrower and approved by its Board, and promptly following the Administrative Agent’s request therefor, a consolidated financial forecast for the Borrower and its Subsidiaries for the fiscal year to which such forecast relates; provided that, for each fiscal year, on or before the seventy-fifth (75th) day following the beginning of such fiscal year, the Borrower shall prepare, and its Board shall approve such consolidated financial forecast for such fiscal year, and the Borrower shall notify the Administrative Agent promptly after the Board has given such approval;
(ef) promptly after the same are releasedbecome publicly available, copies of any press release required all periodic and other reports, proxy statements and other materials filed by U.S. securities laws to be filed the Parent Borrower with the SEC (excludingSecurities and Exchange Commission, for or any Governmental Authority succeeding to any or all of the avoidance functions of doubtthe Securities and Exchange Commission, marketing press -69- 268911794 v5 releases); provided that documents required to be furnished pursuant to this Section 8.01(e) shall be deemed furnished on or with any national securities exchange, as the date that such documents are publicly available on “XXXXX”;
(f) promptly, and in any event within five (5) Business Days after receipt thereof by an Obligor thereof, copies of each notice or other correspondence received from any securities regulator or exchange to the authority of which the Borrower case may become subject from time to time concerning any investigation or possible investigation or other inquiry (other than routine comment letters from the SEC) by such agency regarding financial or other operational results of such Obligor; provided that documents required to be furnished pursuant to this Section 8.01(f) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”be;
(g) promptly after the same are availableupon receipt thereof, copies of each annual report, proxy or financial statement or other report or communication sent all reports submitted to the stockholders Parent Borrower by independent certified public accountants in connection with each annual, interim or special audit of each Obligor the books of the Parent Borrower and its SubsidiariesSubsidiaries made by such accountants, and copies of all annual, regular, periodic and special reports and registration statements which including any Obligor or its Subsidiaries may file or be required to file with any securities regulator or exchange to the authority of which such Obligor or such Subsidiary, as applicable, may become subject from time to time; provided that documents required to be furnished pursuant to this Section 8.01(g) shall be deemed furnished management letter commenting on the date that Borrowers’ internal controls submitted by such documents are publicly available on “XXXXX”accountants to management in connection with their annual audit;
(h) the information regarding insurance maintained by the Borrower [Reserved]; and its Subsidiaries as required under Section 8.05;4879-0244-9248v.7113 US 9692390v.1 CHA715/20025
(i) as soon as possible and in promptly following any event within five request therefor, (5) Business Days after the Borrower obtains knowledge of any Claim related to any Product or inventory involving more than $3,750,000 (or the Equivalent Amount in other currencies), written notice thereof from a Responsible Officer of the Borrower which notice shall include a statement setting forth details of such return, recovery, dispute or claim;
(j) together with the delivery of the Compliance Certificate, evidence satisfactory to the Administrative Agent, based upon the Borrower’s bank account statements that the Borrower is in compliance with the Minimum Liquidity Covenant; and
(ki) such other information respecting regarding the businessesoperations, changes in ownership of Equity Interests, business affairs and financial performance, operations condition of any Borrower or any Subsidiary, or compliance with the assets terms of this Agreement or liabilities of the Obligors (including with respect to the Collateral), taken as a wholeany other Loan Document, as the Agent or any Lender may reasonably request, and (ii) information and documentation reasonably requested by the Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation. The Parent Borrower’s obligations under clauses (a) and (b) of this Section shall in any event be deemed sufficiently performed if the financial statements referred to therein are delivered by the time required under the applicable clause in such form and content as permitted under the Exchange Act. Documents required to be delivered pursuant to clauses (a) and (b) of this Section (to the extent any such documents are included in materials otherwise filed and publicly available with the Securities and Exchange Commission) shall be deemed to have been delivered on the date on which the Parent Borrower posts such documents on xxx.xxx.xxx, or provides a link thereto on the Parent Borrower’s website. All documents and notices required by this Section shall be deemed sufficiently delivered when posted by the Agent on the Approved Electronic Platform to which each Lender and the Agent have been granted access. The Parent Borrower represents and warrants that it files its financial statements with the SEC and, accordingly, the Parent Borrower hereby (i) authorizes the Agent to make the financial statements to be provided under Section 6.01(a) or (b), along with the Loan Documents, available to all Lenders and (ii) agrees that at the time such financial statements are provided hereunder, they shall already have been made available to holders of its securities. The Parent Borrower will not request that any other material be posted to all Lenders without expressly representing and warranting to the Agent in writing that such materials do not constitute material non-public information or that the Parent Borrower has no outstanding publicly traded securities. In no event shall the Administrative Agent may from time post compliance certificates or budgets to time reasonably requestpublic side lenders.
Appears in 1 contract
Samples: Credit Agreement (Dillard's, Inc.)
01Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent, which shall furnish to each Lender:
(a) as soon as available and in any event within forty-five (45) days after the end of the first three (3) fiscal quarters of each fiscal year (i) the consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such fiscal quarter and (ii) the related consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter and the portion of the fiscal year through the end of such fiscal quarter, in each case prepared in all material respects in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with (iii) a certificate of a Responsible Officer of the Borrower stating that (x) such financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as at such date and (y) the results of operations of the Borrower and its Subsidiaries for the period ended on such date have been prepared in all material respects -68- 268911794 v5 in accordance with GAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that documents required to be furnished pursuant to this Section 8.01(a) shall be deemed furnished on the date that such documents are publicly available on “XXXXX” (with the related certificate separately delivered);
(b) as soon as available and in any event within ninety (90) days after the end of each fiscal year (i) the of Holdings, its audited consolidated balance sheets of the Borrower sheet and its Subsidiaries as of the end of such fiscal year and (ii) the related consolidated statements of incomeoperations, stockholders’ equity and cash flows as of the Borrower end of and its Subsidiaries for such fiscal year, setting forth in each case prepared in all material respects in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied all reported on by the Accounting Firm (without a report and opinion thereon of Ernst & Young U.S. LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and such report and opinion shall not be subject to any “going concern” or like qualification (other than any such qualification to the “going concern” opinion that is solely resulting from (x) the impending Maturity Date or the final stated maturity of any Indebtedness, (y) any potential inability to satisfy the Financial Covenant or any other financial covenants under any Indebtedness on a future date or in a future period or (z) limited solely to the effect of the activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiaries on such Unrestricted Subsidiaries) or exception or emphasis of matter of going concern footnote or and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, certified by a Financial Officer as presenting fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP;
(b) within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of Holdings, its consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows 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 the corresponding period or periods of (or, in the case of such consolidated financial statementsthe balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a Responsible Officer consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of the Borrower; provided that documents required to be furnished pursuant to this Section 8.01(b) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”footnotes;
(c) together concurrently with the any delivery of financial statements required pursuant to Section 8.01(aunder clause (a) and or (b)) above, a compliance certificate signed by the chief financial or accounting Responsible of a Financial Officer of the Borrower as of the end of the applicable accounting period (which delivery may be by electronic communication including fax or email and shall be deemed to be an original, authentic counterpart thereof for all purposes) in substantially in the form of Exhibit E (a “Compliance Certificate”) including B (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details of any issues that are material that are raised by auditors thereof and any occurrence action taken or existence of any event, circumstance, act or omission that would cause any representation or warranty contained in Section 7.07, Section 7.18 or Section 7.23 proposed to be incorrect in any material taken with respect (or in any respect if such representation or warranty is qualified by materiality or by reference to Material Adverse Effect or Material Adverse Change) if such representation or warranty were to be made at the time of delivery of a Compliance Certificatethereto, and (ii) for any fiscal period when the Minimum Revenue Covenant is in effect, a certification as to whether or not the Borrower is in setting forth reasonably detailed calculations demonstrating compliance with the Minimum Revenue Financial Covenant as and (iii) stating whether any change in GAAP or in the application thereof has occurred since the later of December 31, 2018 and the end date of the last day financial statements most recently delivered pursuant to Section 5.01(a) and, if any such change has occurred, specifying the effect of such periodchange on the financial statements accompanying such certificate;
(d) after being prepared by the Borrower and approved by its Board, and promptly following the Administrative Agent’s request therefor, a consolidated financial forecast for the Borrower and its Subsidiaries for the fiscal year to which such forecast relates; provided that, for each fiscal year, on or before the seventy-fifth (75th) day following the beginning of such fiscal year, the Borrower shall prepare, and its Board shall approve such consolidated financial forecast for such fiscal year, and the Borrower shall notify the Administrative Agent promptly after the Board has given such approval[reserved];
(e) promptly after the same are releasedbecome publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings or any press release required by U.S. securities laws to be filed Subsidiary with the SEC (excludingSecurities and Exchange Commission, for or any Governmental Authority succeeding to any or all of the avoidance functions of doubtsaid Commission, marketing press -69- 268911794 v5 or with any national securities exchange, or distributed by Holdings to its shareholders generally, as the case may be; and releases); provided that documents required to be furnished pursuant to this Section 8.01(e) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”;
(f) promptlypromptly following any written request therefor, and in any event within five (5) Business Days after receipt thereof by an Obligor thereof, copies of each notice or other correspondence received from any securities regulator or exchange to the authority of which the Borrower may become subject from time to time concerning any investigation or possible investigation or other inquiry (other than routine comment letters from the SEC) by such agency regarding financial or other operational results of such Obligor; provided that documents required to be furnished pursuant to this Section 8.01(f) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”;
(g) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of each Obligor and its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which any Obligor or its Subsidiaries may file or be required to file with any securities regulator or exchange to the authority of which such Obligor or such Subsidiary, as applicable, may become subject from time to time; provided that documents required to be furnished pursuant to this Section 8.01(g) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”;
(h) the information regarding insurance maintained by the Borrower and its Subsidiaries as required under Section 8.05;
(i) as soon as possible and in any event within five (5) Business Days after the Borrower obtains knowledge of any Claim related to any Product or inventory involving more than $3,750,000 (or the Equivalent Amount in other currencies), written notice thereof from a Responsible Officer of the Borrower which notice shall include a statement setting forth details of such return, recovery, dispute or claim;
(j) together with the delivery of the Compliance Certificate, evidence satisfactory to the Administrative Agent, based upon the Borrower’s bank account statements that the Borrower is in compliance with the Minimum Liquidity Covenant; and
(k) such other information respecting regarding the businessesoperations, business affairs and financial performance, operations condition of Holdings or any Subsidiary, or compliance with the assets or liabilities terms of the Obligors (including with respect to the Collateral), taken as a wholethis Agreement, as the Administrative Agent may from time to time reasonably request, on behalf of itself or any Lender hereunder; or (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Beneficial Ownership Regulation, the USA PATRIOT Act or other applicable anti-money laundering laws. Notwithstanding anything to the contrary in this Section 5.01, (x) Holdings and the Borrower shall be deemed to have complied with the terms of Sections 5.01(a) and (b), as applicable, with respect to the financial statements required to be delivered pursuant thereto if Holdings delivers to the Administrative Agent and the Lenders, within the same time frame required under the Securities Act and the rules and regulations of the Securities and Exchange Commission its annual report on Form 10-K for the applicable fiscal year or its quarterly report in Form 10-Q for the applicable fiscal quarter, respectively, that it (or any of its direct or indirect parent companies; provided that, in the event the holding company(s) structure of the Borrower as of the Closing Date changes (or such direct or indirect parents of Holdings otherwise cease to become passive holding companies), consolidated balance sheets, statements of profit and loss and statements of cash flows of Holdings shall also be provided) has filed with the Securities and Exchange Commission, and (y) any documents required to be delivered pursuant to Sections 5.01(a), (b) and (f) shall be deemed to have been delivered on the date on which Holdings provides notice to the Administrative Agent that such information has been posted on Holdings’ website on the Internet (with such notice containing the link thereto), or posted on Holdings’ behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
01Financial Statements and Other Information. The Borrower will furnish to the Administrative AgentAgent for distribution to each Lender:
(a) as soon as available and in any event within forty-five (45) days after the end of the first three (3) fiscal quarters of each fiscal year (i) the consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such fiscal quarter and (ii) the related consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter and the portion of the fiscal year through the end of such fiscal quarter, in each case prepared in all material respects in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with (iii) a certificate of a Responsible Officer of the Borrower stating that (x) such financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as at such date and (y) the results of operations of the Borrower and its Subsidiaries for the period ended on such date have been prepared in all material respects -68- 268911794 v5 in accordance with GAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that documents required to be furnished pursuant to this Section 8.01(a) shall be deemed furnished on the date that such documents are publicly available on “XXXXX” (with the related certificate separately delivered);
(b) as soon as available and in any event within ninety (90) 120 days after the end of each fiscal year (i) the consolidated balance sheets of the Borrower and its Subsidiaries as (commencing with the fiscal year of the end of such fiscal year Borrower ended December 31, 2023), its audited consolidated balance sheet and (ii) the related consolidated statements of incomeoperations, stockholders’ equity and cash flows as of the Borrower end of and its Subsidiaries for such fiscal year, setting forth in each case prepared in all material respects in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied all reported on by a report and opinion thereon of Ernst Deloitte & Young U.S. Touche LLP or another firm of other independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and such report and opinion shall not be subject to any (without a “going concern” or like qualification qualification, commentary or exception or emphasis of matter of going concern footnote or and without any qualification or exception as to the scope of such auditaudit (except as resulting solely from an upcoming Default or Event of Default under this Agreement or the maturity of the Loans within the 12-month period following the relevant audit date)) 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 consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter of the Borrower ended June 30, 2023), its consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows 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 the corresponding period or periods of (or, in the case of such consolidated financial statementsthe balance sheet, as of the end of) the previous fiscal year, all certified by a Responsible Officer one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower; provided that documents required Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to be furnished pursuant to this Section 8.01(b) shall be deemed furnished on normal year-end audit adjustments and the date that such documents are publicly available on “XXXXX”absence of footnotes;
(c) together concurrently with the any delivery of financial statements required pursuant to Section 8.01(aunder clause (a) and or (b)) above to the Administrative Agent, a compliance certificate signed by the chief financial or accounting Responsible of a Financial Officer of the Borrower as of the end of the applicable accounting period (which delivery may be by electronic communication including fax or email and shall be deemed to be an original, authentic counterpart thereof for all purposes) substantially in the form of Exhibit E (a “Compliance Certificate”) including I (i) details certifying, in the case of any issues that are the financial statements delivered under clause (b) above, as presenting fairly in all material that are raised by auditors respects the financial condition and any occurrence or existence results of any eventoperations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, circumstancesubject to normal year-end audit adjustments and the absence of footnotes, act or omission that would cause any representation or warranty contained in Section 7.07, Section 7.18 or Section 7.23 to be incorrect in any material respect (or in any respect if such representation or warranty is qualified by materiality or by reference to Material Adverse Effect or Material Adverse Change) if such representation or warranty were to be made at the time of delivery of a Compliance Certificate, and (ii) for any fiscal period when certifying as to whether, to the Minimum Revenue Covenant is in effectknowledge of such Financial Officer, a certification as Default has occurred and is continuing and, if a Default has occurred that is continuing, specifying the details thereof and any action taken or proposed to whether or not the Borrower is in be taken with respect thereto, (iii) setting forth reasonably detailed calculations demonstrating compliance with the Minimum Revenue Covenant as Financial Covenants and (iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the last day audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such periodchange on the financial statements accompanying such certificate;
(d) as soon as available, but in any event not later than 105 days after being prepared by the Borrower and approved by its Board, and promptly following the Administrative Agent’s request therefor, a consolidated financial forecast for the Borrower and its Subsidiaries for the fiscal year to which such forecast relates; provided that, for each fiscal year, on or before the seventy-fifth (75th) day following the beginning of each fiscal year of the Borrower that begins after the Effective Date, a copy of the plan and forecast (including a projected consolidated balance sheet, income statement and cash flow statement) of the Borrower for each quarter of such fiscal year, the Borrower shall prepare, and its Board shall approve such consolidated financial forecast for such fiscal year, and the Borrower shall notify year in form reasonably satisfactory to the Administrative Agent promptly after the Board has given such approval;
(e) promptly after the same are released, copies of any press release required by U.S. securities laws to be filed with the SEC (excludingwhich, for the avoidance of doubt, marketing press -69- 268911794 v5 releases); provided that documents required to be furnished pursuant to this Section 8.01(e) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”;
(f) promptly, and in any event within five (5) Business Days after receipt thereof by an Obligor thereof, copies of each notice or other correspondence received from any securities regulator or exchange to the authority of which the Borrower may become subject from time to time concerning any investigation or possible investigation or other inquiry (other than routine comment letters from the SEC) by such agency regarding financial or other operational results of such Obligor; provided that documents required to be furnished pursuant to this Section 8.01(f) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”;
(g) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of each Obligor and its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which any Obligor or its Subsidiaries may file or not be required to file with any securities regulator or exchange to the authority include projections of which such Obligor or such Subsidiary, as applicable, may become subject from time to time; provided that documents required to be furnished pursuant to this Section 8.01(g) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”;
(h) the information regarding insurance maintained by the Borrower and its Subsidiaries as required under Section 8.05;
(i) as soon as possible and in any event within five (5) Business Days after the Borrower obtains knowledge of any Claim related to any Product or inventory involving more than $3,750,000 (or the Equivalent Amount in other currencies), written notice thereof from a Responsible Officer of the Borrower which notice shall include a statement setting forth details of such return, recovery, dispute or claim;
(j) together with the delivery of the Compliance Certificate, evidence satisfactory to the Administrative Agent, based upon the Borrower’s bank account statements that the Borrower is in compliance with the Minimum Liquidity CovenantFinancial Covenants, projections of the Senior Secured Net Leverage Ratio or Consolidated Interest Coverage Ratio or a description of the assumptions made in the build-up of such plan and forecast); and
(ke) promptly following any request by the Administrative Agent therefor, (x) such other information respecting regarding the businessesoperations, business affairs and financial performance, operations condition of the assets Borrower or liabilities any Subsidiary, or compliance with the terms of the Obligors (including with respect to the Collateral), taken as a wholethis Agreement, as the Administrative Agent or any Lender (acting through the Administrative Agent) may from time commercially reasonably request and (y) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation. Documents required to time reasonably requestbe delivered pursuant to Section 5.01(a) or (b) may be delivered electronically and posted on the Borrower’s behalf on an Internet or intranet website, if any, to which the Administrative Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent) or on XXXXX (the Electronic Data Gathering, Analysis and Retrieval system of the SEC) or any successor thereto.
Appears in 1 contract
Samples: Credit Agreement (Harmony Biosciences Holdings, Inc.)
01Financial Statements and Other Information. The Borrower Company will furnish to the Administrative AgentAgent and each Lender:
(a) as soon as available and available, but in any event within forty-five (45) not later than 120 days after the end of the first three (3) fiscal quarters close of each fiscal year (i) year, for the Consolidated Group, audited financial statements, including a consolidated balance sheets of the Borrower and its Subsidiaries sheet as of at the end of such fiscal quarter year and (ii) the related consolidated statements of income and retained earnings and of cash flows for such year, setting forth in each case in comparative form the figures for the previous year, without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, prepared by KPMG LLC or other independent certified public accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 60 days after the close of each of the first three fiscal quarters and not later than 90 days after the close of the last fiscal quarter of any fiscal year, for the Consolidated Group, an unaudited internally prepared consolidated balance sheet as of the close of each such period and the related unaudited internally prepared consolidated statements of income and retained earnings and of cash flows of the Borrower and its Subsidiaries Consolidated Group for such quarter period and the portion of the fiscal year through the end of such fiscal quarterperiod, setting forth in each case prepared in all material respects in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with (iii) a certificate of a Responsible Officer of the Borrower stating that (x) such financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as at such date and (y) the results of operations of the Borrower and its Subsidiaries for the period ended on such date have been prepared in all material respects -68- 268911794 v5 in accordance with GAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that documents required to be furnished pursuant to this Section 8.01(a) shall be deemed furnished on the date that such documents are publicly available on “XXXXX” (with the related certificate separately delivered);
(b) as soon as available and in any event within ninety (90) days after the end of each fiscal year (i) the consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such fiscal year and (ii) the related consolidated statements of income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries for such fiscal year, in each case prepared in all material respects in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of Ernst & Young U.S. LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and such report and opinion shall not be subject to any “going concern” or like qualification or exception or emphasis of matter of going concern footnote or any qualification or exception as to the scope of such audit, and in the case of such consolidated financial statements, all certified by a Responsible Officer of the Borrower; provided that documents required to be furnished pursuant to this Section 8.01(b) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”Company’s chief financial officer or chief accounting officer;
(c) together concurrently with the any delivery of financial statements required pursuant to Section 8.01(aunder clause (a) and or (b)) above, a compliance certificate signed by the chief financial or accounting Responsible Officer of the Borrower as of the end of the applicable accounting period (which delivery may be by electronic communication including fax or email and shall be deemed to be an original, authentic counterpart thereof for all purposes) substantially in the form of Exhibit E (a “Compliance Certificate”) including Certificate (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details of any issues that are material that are raised by auditors thereof and any occurrence action taken or existence of any event, circumstance, act or omission that would cause any representation or warranty contained in Section 7.07, Section 7.18 or Section 7.23 proposed to be incorrect in any material taken with respect (or in any respect if such representation or warranty is qualified by materiality or by reference to Material Adverse Effect or Material Adverse Change) if such representation or warranty were to be made at the time of delivery of a Compliance Certificatethereto, and (ii) for any fiscal period when setting forth reasonably detailed calculations demonstrating whether the Minimum Revenue Covenant is in effect, a certification as to whether or not the Borrower Company is in compliance with Sections 7.02 and 7.09, including an update of Schedule 5.19 listing all of the Minimum Revenue Covenant Unencumbered Properties as of such date, and (iii) stating whether any material change in GAAP or in the last day application thereof has occurred since the date of the Audited Financial Statements referred to in Section 5.05 and, if any such change has occurred, specifying the effect of such periodchange on the financial statements accompanying such certificate;
(d) after being prepared by concurrently with the Borrower and approved by its Boardquarterly financial statements required under clause (b) above, a schedule of the Unencumbered Properties comprising the Total Unencumbered Property Pool Value, summarizing total revenues, expenses, and promptly following the Administrative Agent’s request therefor, a consolidated financial forecast for the Borrower and its Subsidiaries for the fiscal year to which such forecast relates; provided that, for each fiscal year, on or before the seventy-fifth (75th) day following the beginning of such fiscal year, the Borrower shall prepare, and its Board shall approve such consolidated financial forecast for such fiscal year, and the Borrower shall notify the Administrative Agent promptly after the Board has given such approval;Unencumbered Property NOI.
(e) promptly after the same are releasedfollowing any request thereafter, copies of all periodic and regular reports, registration statements (without exhibits unless expressly requested by Administrative Agent) and prospectuses and all amendments thereto filed by the Trust, the Company or any press release required by U.S. securities laws to be filed Subsidiary with the SEC (excludingSEC, for or any Governmental Authority succeeding to any or all of the avoidance functions of doubtthe SEC, marketing press -69- 268911794 v5 releases); provided that documents required or with any national securities exchange, or distributed by the Trust to be furnished pursuant to this Section 8.01(e) shall be deemed furnished on its shareholders generally, as the date that such documents are publicly available on “XXXXX”case may be;
(f) promptly, and in any event within five (5) Business Days 30 days after receipt thereof by an Obligor thereof, copies the close of each notice or other correspondence received from any securities regulator or exchange fiscal year, annual projections (cash flow and operating income) for the Company in a form and content reasonably acceptable to the authority of which the Borrower may become subject from time to time concerning any investigation or possible investigation or other inquiry (other than routine comment letters from the SEC) by such agency regarding financial or other operational results of such Obligor; provided that documents required to be furnished pursuant to this Section 8.01(f) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”Administrative Agent;
(g) promptly after following any reasonable request therefor, provide information and documentation reasonably requested by the same are availableAdministrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, copies of each annual reportincluding, proxy or financial statement or other report or communication sent to without limitation, the stockholders of each Obligor PATRIOT Act and its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which any Obligor or its Subsidiaries may file or be required to file with any securities regulator or exchange to the authority of which such Obligor or such Subsidiary, as applicable, may become subject from time to timeBeneficial Ownership Regulation; provided that documents required to be furnished pursuant to this Section 8.01(g) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”;and
(h) the promptly following any request therefor, such other information regarding insurance maintained the operations, business affairs and financial condition of the Trust, the Company or any Subsidiary, or compliance with the terms of this Agreement, pursuant to a reasonable and customary request from the Administrative Agent or any Lender. The Company may, in its sole discretion, satisfy its obligations under Sections 6.01(a) and (b) by filing with the Borrower SEC Annual Reports on Form 10-K and its Subsidiaries Quarterly Reports on Form 10-Q and such other reports on other forms as may be appropriate at such times and in accordance with the SEC’s rules and the instructions accompanying such forms. Documents required under to be delivered pursuant to Section 8.05;
6.01(a) or (b) or Section 6.01(e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) as soon as possible on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Company’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Company shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to the Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Company shall notify the Administrative Agent and each Lender (by facsimile or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event within five (5) Business Days after shall have no responsibility to monitor compliance by the Borrower obtains knowledge of Company with any Claim related such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to any Product it or inventory involving more than $3,750,000 (or the Equivalent Amount in other currencies), written notice thereof from a Responsible Officer of the Borrower which notice shall include a statement setting forth details maintaining its copies of such return, recovery, dispute or claim;
(j) together with the delivery of the Compliance Certificate, evidence satisfactory to the Administrative Agent, based upon the Borrower’s bank account statements that the Borrower is in compliance with the Minimum Liquidity Covenant; and
(k) such other information respecting the businesses, financial performance, operations condition of the assets or liabilities of the Obligors (including with respect to the Collateral), taken as a whole, as the Administrative Agent may from time to time reasonably requestdocuments.
Appears in 1 contract
Samples: Credit and Term Loan Agreement (Ares Real Estate Income Trust Inc.)
01Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent:
(a) as soon as available and in any event within forty-five (45) days after the end of the first three (3) fiscal quarters of each fiscal year (i) the consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such fiscal quarter and (ii) the related consolidated statements of income income, shareholders’ equity and cash flows of the Borrower and its Subsidiaries for such quarter and the portion of the fiscal year through the end of such fiscal quarter, in each case prepared in all material respects in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with (iii) a certificate of a Responsible Officer of the Borrower stating that (x) such financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as at such date and (y) the results of operations of the Borrower and its Subsidiaries for the period ended on such date have been prepared in all material respects -68- 268911794 v5 in accordance with GAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that documents required to be furnished pursuant to this Section 8.01(a) shall be deemed furnished on the date that such documents are publicly available on “XXXXX” or the Borrower’s website (with the related certificate separately delivered);
(b) as soon as available and in any event within ninety (90) days after the end of each fiscal year (i) the consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such fiscal year and (ii) the related consolidated statements of income, stockholdersshareholders’ equity and cash flows of the Borrower and its Subsidiaries for such fiscal year, in each case prepared in all material respects in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of Ernst & Young U.S. LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and such report and opinion shall not be subject to any “going concern” or like qualification or exception or emphasis of matter of going concern footnote or any qualification or exception as to the scope of such audit, and in the case of such consolidated financial statements, certified by a Responsible Officer of the Borrower; provided that documents required to be furnished pursuant to this Section 8.01(b) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”” or the Borrower’s website; provided, however, that any such report shall not be considered qualified due to the inclusion of an emphasis of matter paragraph in the audit opinion based on the impending maturity date of any Indebtedness under this Agreement within 12 months of the date of such report, the prospective breach of any financial covenant hereunder or liquidity issues due to ordinary course liabilities;
(c) together with the financial statements required pursuant to Section 8.01(a) and (b), a compliance certificate signed by the chief financial or accounting a Responsible Officer of the Borrower as of the end of the applicable accounting period (which delivery may be by electronic communication including fax or email and shall be deemed to be an original, authentic counterpart thereof for all purposes) substantially in the form of Exhibit E (a “Compliance Certificate”) including (i) details of any issues that are material that are raised by auditors and any occurrence or existence of any event, circumstance, act or omission that would cause any representation or warranty contained in Section 7.07, Section 7.18 or Section 7.23 7.22 to be incorrect in any material respect (or in any respect if such representation or warranty is qualified by materiality or by reference to Material Adverse Effect or Material Adverse Change) if such representation or warranty were to be made at the time of delivery of a Compliance Certificate. For the avoidance of doubt, and (ii) for no representation or warranty contained in Section 7.07, Section 7.18 or Section 7.22 is required to be, shall be or shall be deemed to be made in connection with a delivery of any fiscal period when the Minimum Revenue Covenant is in effect, a certification as to whether or not the Borrower is in compliance with the Minimum Revenue Covenant as of the last day of such periodCompliance Certificate;
(d) after being prepared by the Borrower and approved by its Board, and promptly following the Administrative Agent’s request therefor, a consolidated financial forecast budget for the Borrower and its Subsidiaries for the fiscal year to which such forecast budget relates; provided that, for each fiscal year, on or before the seventy-fifth sixtieth (75th60th) day following the beginning of such fiscal year, the Borrower shall prepare, and its Board shall approve such consolidated financial forecast budget for such fiscal year, and the Borrower shall notify the Administrative Agent promptly after the Board has given such approval;
(e) promptly after the same are released, copies of all press releases (other than any press release required by U.S. securities laws to be filed with the SEC (excludingthat is immaterial, for the avoidance of doubt, marketing press -69- 268911794 v5 releasesroutine or administrative in nature); provided that documents required to be furnished pursuant to this Section 8.01(e) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”” or the Borrower’s website;
(f) promptly, and in any event within five (5) Business Days after receipt thereof by an Obligor thereof, copies of each notice or other correspondence received from any securities regulator or exchange to the authority of which the Borrower may become subject from time to time concerning any investigation or possible investigation or other inquiry (other than routine comment letters from the SEC) by such agency regarding financial or other operational results of such Obligor, in each case, excluding any investigation or inquiry that is immaterial, routine or administrative in nature; provided that documents required to be furnished pursuant to this Section 8.01(f) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”” or the Borrower’s website;
(g) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of each Obligor and its SubsidiariesSubsidiaries (other than any report or any communication that is immaterial, routine or administrative in nature), and copies of all annual, regular, periodic and special reports and registration statements which any Obligor or its Subsidiaries may file or be required to file with any securities regulator or exchange to the authority of which such Obligor or such Subsidiary, as applicable, may become subject from time to time; provided that documents required to be furnished pursuant to this Section 8.01(g) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”” or the Borrower’s website;
(h) the information regarding insurance maintained by the Borrower and its Subsidiaries as and when required under Section 8.05;;
(i) as soon as possible promptly, and in any event within five (5) Business Days after the Borrower obtains knowledge of any Claim related to any Product or inventory involving more than $3,750,000 2,500,000 (or the Equivalent Amount in other currencies), written notice thereof from a Responsible Officer of the Borrower which notice shall include a statement setting forth details of such return, recovery, dispute or claim;
(j) together with as soon as possible and in any event within five (5) Business Days after the delivery end of the Compliance Certificateeach fiscal month, evidence reasonably satisfactory to the Administrative Agent, based upon the Borrower’s bank account statements that the Borrower is has met its minimum liquidity requirement set out in compliance with the Minimum Liquidity CovenantSection 10.01; and[reserved]; and
(k) such other information respecting the businesses, financial performance, operations condition of the assets or liabilities of the Obligors (including with respect to the Collateral), taken as a whole, as the Administrative Agent may from time to time reasonably request.
Appears in 1 contract
01Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent:Agent for distribution to each Lender (provided that, the Administrative Agent shall not be required to distribute any document or report to any Lender to the extent such distribution would cause the Administrative Agent to breach or violate any agreement that it has with another Person (including any non-reliance or non-disclosure letter with any Approved Third-Party Appraiser)):
(a) as soon as available and in any event within forty-five (45) 90 days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending December 31, 2020), the audited consolidated balance sheet and the related audited consolidated statements of operations, audited consolidated statements of changes in net assets, audited consolidated statements of cash flows and related audited consolidated schedule of investments of the Borrower and its Subsidiaries on a consolidated basis as of the end of and for such year, setting forth in each case in comparative 108 29135447.6 form the figures for the previous fiscal year (to the extent full fiscal year information is available), 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 (which report shall be unqualified as to going concern and scope of audit and shall not contain any explanatory paragraph or paragraph of emphasis with respect to going concern); provided that the requirements set forth in this clause (a) may be fulfilled by providing to the Administrative Agent for distribution to each Lender the report filed by the Borrower with the SEC on Form 10- K for the applicable fiscal year;
(b) within 45 days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower (i) commencing with the fiscal quarter ending March 31, 2021), the consolidated balance sheets sheet and the related consolidated statements of operations, consolidated statements of changes in net assets, consolidated statements of cash flows and related consolidated schedule of investments of the Borrower and its Subsidiaries on a consolidated basis as of the end of and for such fiscal quarter and (ii) the related consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter and the then elapsed portion of the fiscal year through the end of such fiscal quarteryear, setting forth in each case prepared in all material respects in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for (or, in the case of the statement of assets and liabilities, as of the end of) the corresponding period in or periods of the preceding previous fiscal year (to the extent such information is available for the previous fiscal year), together with (iii) all certified by a certificate of a Responsible Financial Officer of the Borrower stating that (x) such financial statements as presenting fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as at such date and (y) the results of operations of the Borrower and its Subsidiaries for the period ended on such date have been prepared in all material respects -68- 268911794 v5 a consolidated basis in accordance with GAAP consistently applied, subject to changes resulting from normal, normal year-end audit adjustments and except for the absence of notesfootnotes; provided that documents required to be furnished pursuant to the requirements set forth in this Section 8.01(a) shall be deemed furnished on the date that such documents are publicly available on “XXXXX” (with the related certificate separately delivered);
clause (b) as soon as available and in any event within ninety (90) days after the end of each fiscal year (i) the consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such fiscal year and (ii) the related consolidated statements of income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries for such fiscal year, in each case prepared in all material respects in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied may be fulfilled by a report and opinion thereon of Ernst & Young U.S. LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable providing to the Administrative Agent, which Agent for distribution to each Lender the report and opinion shall be prepared in accordance filed by the Borrower with generally accepted auditing standards and such report and opinion shall not be subject to any “going concern” or like qualification or exception or emphasis of matter of going concern footnote or any qualification or exception as to the scope of such audit, and in SEC on Form 10-Q for the case of such consolidated financial statements, certified by a Responsible Officer of the Borrower; provided that documents required to be furnished pursuant to this Section 8.01(b) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”applicable quarterly period;
(c) together concurrently with the any delivery of financial statements required pursuant to Section 8.01(aunder clause (a) and (b), a compliance certificate signed by the chief financial or accounting Responsible Officer of the Borrower as of the end of the applicable accounting period (which delivery may be by electronic communication including fax or email and shall be deemed to be an original, authentic counterpart thereof for all purposes) substantially in the form of Exhibit E (a “Compliance Certificate”) including (i) details of any issues that are material that are raised by auditors and any occurrence or existence of any event, circumstance, act or omission that would cause any representation or warranty contained in Section 7.07, Section 7.18 or Section 7.23 to be incorrect in any material respect (or in any respect if such representation or warranty is qualified by materiality or by reference to Material Adverse Effect or Material Adverse Change) if such representation or warranty were to be made at the time of delivery of a Compliance Certificate, and (ii) for any fiscal period when the Minimum Revenue Covenant is in effect, a certification as to whether or not the Borrower is in compliance with the Minimum Revenue Covenant as of the last day of such period;
(d) after being prepared by the Borrower and approved by its Board, and promptly following the Administrative Agent’s request therefor, a consolidated financial forecast for the Borrower and its Subsidiaries for the fiscal year to which such forecast relates; provided that, for each fiscal year, on or before the seventy-fifth (75th) day following the beginning of such fiscal year, the Borrower shall prepare, and its Board shall approve such consolidated financial forecast for such fiscal year, and the Borrower shall notify the Administrative Agent promptly after the Board has given such approval;
(e) promptly after the same are released, copies of any press release required by U.S. securities laws to be filed with the SEC (excluding, for the avoidance of doubt, marketing press -69- 268911794 v5 releases); provided that documents required to be furnished pursuant to this Section 8.01(e) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”;
(f) promptly, and in any event within five (5) Business Days after receipt thereof by an Obligor thereof, copies of each notice or other correspondence received from any securities regulator or exchange to the authority of which the Borrower may become subject from time to time concerning any investigation or possible investigation or other inquiry (other than routine comment letters from the SEC) by such agency regarding financial or other operational results of such Obligor; provided that documents required to be furnished pursuant to this Section 8.01(f) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”;
(g) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of each Obligor and its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which any Obligor or its Subsidiaries may file or be required to file with any securities regulator or exchange to the authority of which such Obligor or such Subsidiary, as applicable, may become subject from time to time; provided that documents required to be furnished pursuant to this Section 8.01(g) shall be deemed furnished on the date that such documents are publicly available on “XXXXX”;
(h) the information regarding insurance maintained by the Borrower and its Subsidiaries as required under Section 8.05;
(i) as soon as possible and in any event within five (5) Business Days after the Borrower obtains knowledge of any Claim related to any Product or inventory involving more than $3,750,000 (or the Equivalent Amount in other currencies), written notice thereof from a Responsible Officer of the Borrower which notice shall include a statement setting forth details of such return, recovery, dispute or claim;
(j) together with the delivery of the Compliance Certificate, evidence satisfactory to the Administrative Agent, based upon the Borrower’s bank account statements that the Borrower is in compliance with the Minimum Liquidity Covenant; and
(k) such other information respecting the businesses, financial performance, operations condition of the assets or liabilities of the Obligors (including with respect to the Collateral), taken as a whole, as the Administrative Agent may from time to time reasonably request.or
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Samples: Senior Secured Revolving Credit Agreement (Barings Capital Investment Corp)
