Annual Financials. As soon as available and in any event within 90 days after the end of each Fiscal Year, a copy of the annual audit report for such year for the Borrower and its Subsidiaries, including therein Consolidated and consolidating balance sheets of the Borrower and its Subsidiaries as of the end of such Fiscal Year and Consolidated and consolidating statements of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for such Fiscal Year, in each case accompanied by an opinion not qualified as to scope or going concern of Arthxx Xxxexxxx, L.L.P. or other independent public accountants of nationally recognized standing acceptable to the Administrative Agent, together with (i) a certificate of such accounting firm to the Lender Parties stating that in the course of the regular audit of the business of the Borrower and its Subsidiaries, which audit was conducted by such accounting firm in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge that a Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default has occurred and is continuing, a statement as to the nature thereof, (ii) a schedule in form satisfactory to the Administrative Agent of the computations used by such accountants in determining, as of the end of such Fiscal Year, compliance with the covenants contained in Section 5.04, provided that in the event of any change in GAAP used in the preparation of such financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 5.04, a statement of reconciliation conforming such financial statements to GAAP and (iii) a certificate of a Designated Financial Officer (A) stating that no Default has occurred and is continuing or, if a default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto and (B) setting forth, for the Rolling Period ending at the end of such Fiscal Year, the Adjusted EBITDA (and the calculation thereof) of each New Center constructed within the preceding 15 months, EBITDA of each bowling center acquired or constructed by the Borrower or any of its Subsidiaries after the First Closing Date and acquired or constructed at least 15 months prior to the end of such Rolling Period and all Other Additions, if any, for such Rolling Period.
Appears in 1 contract
Samples: Credit Agreement (Amf Group Inc)
Annual Financials. As soon as available and in any event within not later than 90 days after the end of each Fiscal Yearfiscal year (commencing with fiscal year ending December 31, 2019) of the Borrower and its Subsidiaries, on a consolidated basis (or such later date authorized by the SEC; provided that, the Borrower shall have delivered proper and timely notices of late filings filed with the SEC and also delivered such to the Administrative Agent, and such later date approved by the SEC may not be a date later than 105 days after the end of such fiscal year), a certificate of a Responsible Officer of the Borrower certifying that attached thereto are true and correct copies of: (i) the Form 10-K filed with the SEC for such fiscal year end, (ii) to the extent not otherwise provided in such Form 10-K, a copy of the annual audit report for such year for the Borrower and its Subsidiaries, on a consolidated basis, including therein Consolidated and consolidating the Borrower’s consolidated balance sheets of the Borrower and its Subsidiaries sheet as of the end of such Fiscal Year fiscal year and Consolidated and consolidating the Borrower’s consolidated statements of income income, cash flows, and retained earnings, in each case certified by independent certified public accountants of national standing reasonably acceptable to the Administrative Agent without a Consolidated statement “going concern” or like qualification or exception to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of cash flows operations of the Borrower and its consolidated Subsidiaries for in accordance with GAAP consistently applied, and including any management letters delivered by such Fiscal Year, in each case accompanied by an opinion not qualified as to scope or going concern of Arthxx Xxxexxxx, L.L.P. or other independent public accountants of nationally recognized standing acceptable to the Administrative AgentBorrower or any Subsidiary in connection with such audit, together with (iiii) a certificate of such accounting firm to the Lender Parties Administrative Agent and the Lenders stating that that, in the course of the regular audit of the business of the Borrower and its Subsidiaries, on a consolidated basis, which audit was conducted by such accounting firm in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge that a Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default has occurred and is continuing, a statement as to the nature thereof, (iiiv) a schedule in form satisfactory to the Administrative Agent of the computations used by such accountants in determiningCompliance Certificate, as of the end of such Fiscal Year, compliance with the covenants contained described in Section 5.048.06(c), provided that (v) a Production Report as described in the event of any change in GAAP used in the preparation of such financial statementsSection 8.06(d), the Borrower shall also provide, if necessary for the determination of compliance with Section 5.04, a statement of reconciliation conforming such financial statements to GAAP and (iiivi) a certificate of a Designated Financial Officer (A) stating that no Default has occurred and is continuing or, if a default has occurred and is continuing, a statement Hedging Report as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto and (B) setting forth, for the Rolling Period ending at the end of such Fiscal Year, the Adjusted EBITDA (and the calculation thereof) of each New Center constructed within the preceding 15 months, EBITDA of each bowling center acquired or constructed by the Borrower or any of its Subsidiaries after the First Closing Date and acquired or constructed at least 15 months prior to the end of such Rolling Period and all Other Additions, if any, for such Rolling Period.described in Section 8.06(e);
Appears in 1 contract
Samples: Term Loan Credit Agreement (Abraxas Petroleum Corp)
Annual Financials. As soon as available and in any event within 90 days after the end of each Fiscal Yearfiscal year beginning with the fiscal year ending December 31, a copy 1998, consolidated and consolidating statements of the annual audit report operations, cash flows and stockholders' equity of Borrower and its Consolidated Subsidiaries for such year for and the related consolidated and consolidating balance sheet of Borrower and its SubsidiariesConsolidated Subsidiaries as at the end of such year, including therein Consolidated setting forth in each case in comparative form (i) the corresponding consolidated and consolidating balance sheets of the Borrower and its Subsidiaries information as of the end of such Fiscal Year and Consolidated and consolidating statements for the preceding fiscal year (provided that for purposes of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for such Fiscal Year, in each case accompanied by an opinion not qualified as to scope any fiscal year ending on or going concern of Arthxx Xxxexxxx, L.L.P. or other independent public accountants of nationally recognized standing acceptable prior to the Administrative Agentfirst anniversary after the Closing Date, together with this clause (i) shall only require a certificate pro forma consolidated statement of operations for the preceding fiscal year that gives effect to the Transactions as if they occurred on the first day of such accounting firm to the Lender Parties stating that in the course of the regular audit of the business of the Borrower preceding fiscal year and its Subsidiaries, which audit was conducted by such accounting firm in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge that a Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default has occurred and is continuing, a statement as to the nature thereof, (ii) a schedule in form satisfactory to the Administrative Agent of the computations used by such accountants in determining, consolidating information as of the end of such Fiscal Year, compliance with the covenants contained in Section 5.04, provided that in the event of any change in GAAP used in the preparation of such financial statements, the Borrower shall also provide, if necessary and for the determination preceding fiscal year) and (ii) the corresponding budget or plan for such period, and accompanied by an opinion, without material qualification, thereon of compliance with Section 5.04independent certified public accountants of recognized national standing, a statement of reconciliation conforming such which opinion shall state that said consolidated and consolidating financial statements to GAAP fairly present the consolidated and (iii) a certificate consolidating financial condition, results of a Designated Financial Officer (A) stating that no Default has occurred operations and is continuing or, if a default has occurred cash flows of Borrower and is continuing, a statement its Consolidated Subsidiaries as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto and (B) setting forth, for the Rolling Period ending at the end of of, and for, such Fiscal Yearfiscal year in accordance with GAAP, the Adjusted EBITDA consistently applied; Borrower shall supply such additional information and detail as to any item or items contained on any such statement that Lenders (and the calculation thereof) of each New Center constructed within the preceding 15 months, EBITDA of each bowling center acquired or constructed by the Borrower or any of its Subsidiaries after the First Closing Date and acquired or constructed at least 15 months prior to the end of extent applicable) may reasonably require; all such Rolling Period and all Other Additionsinformation will be prepared in accordance with GAAP consistently applied; in addition, Borrower shall provide consolidated financial statements for Foreign Subsidiaries (if any, ) for such Rolling Period.the same periods in fiscal years 1998 and thereafter substantially consistent with the foregoing;
Appears in 1 contract
Annual Financials. As soon as available and in any event (i) With respect to Holdings, within 90 120 days after the end of each Fiscal Year, a copy of the annual audit report for such year for the Borrower and its SubsidiariesHoldings, including therein Consolidated and consolidating balance sheets of the Borrower and its Subsidiaries as of the end of such Fiscal Year and a Consolidated and consolidating balance sheet, statements of income income, and a Consolidated statement of cash flows of the Borrower and its Subsidiaries Holdings for such Fiscal Year, in each case accompanied by an opinion not qualified as to scope or such audit report of an Approved Accounting Firm, which opinion shall not have any “going concern of Arthxx Xxxexxxxconcern” qualification, L.L.P. or other independent public accountants of nationally recognized standing acceptable except to the Administrative Agent, together with (i) extent that such a certificate “going concern” qualification relates to the report and opinion accompanying the financial statements for the Fiscal Year immediately prior to the stated final maturity date of the Advances and which qualification or statement is solely a consequence of such accounting firm to the Lender Parties stating that in the course of the regular audit of the business of the Borrower and its Subsidiariesimpending stated final maturity date under this Agreement; provided that, which audit was conducted by such accounting firm in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge that a Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default has occurred and is continuing, a statement as to the nature thereof, (ii) a schedule in form satisfactory to the Administrative Agent of the computations used by such accountants in determining, as of the end of such Fiscal Year, compliance with the covenants contained in Section 5.04, provided that in the event of any change in GAAP used in the preparation of such financial statements, the Borrower Parent shall also provide, if necessary for the determination provide a reconciliation of compliance with Section 5.04, a statement of reconciliation conforming such financial statements to former GAAP.
(ii) Incidental to the delivery of the reporting required in subparagraph (b)(i) above, within 120 days after the end of each Fiscal Year, derivative reconciliations with respect to the Parent and its Restricted Subsidiaries (in a form reasonably satisfactory to the Administrative Agent, and with respect to calculation of income, including separate disclosures with respect to Net Income described in the last sentence of the definition of such term) as of the end of such Fiscal Year, covering balance sheets, statements of income, and statements of cash flows, all in reasonable detail, including the consolidated and unconsolidated profits and losses of the Express JV and Bonobos, as applicable, and duly certified (subject to normal year-end audit adjustments) by a Responsible Officer of the Parent as having been prepared in accordance with GAAP and (iiiother than the absence of footnotes), together with (A) a certificate on behalf of the Parent signed by a Designated Financial Responsible Officer (A) of the Parent stating that no Event of Default has occurred and is continuing or, if a default an Event of Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower Parent has taken and proposes to take with respect thereto and thereto, (B) setting fortha schedule prepared by a Responsible Officer of the Parent in form satisfactory to the Administrative Agent of the computations used by the Parent in determining a pro forma calculation of the Leverage Ratio, (C) a certificate on behalf of the Parent signed by a Responsible Officer of the Parent (1) attaching a reconciliation statement reflecting the adjustments necessary to eliminate the assets, liabilities, revenues, expenses and net income of the Unrestricted Subsidiaries in such financial statements (it being understood and agreed that such reconciliation statements shall not be audited) or, in the case of the first such list so delivered, since the ThirdFifth Amendment Effective Date, (2) certifying that no Subsidiary is a Foreign Subsidiary, Excluded Subsidiary, or an Unrestricted Subsidiary except as identified thereinthat the Costa Rica Subsidiary is a Foreign Subsidiary, and (3) identifying each incurrence of Debt for Borrowed Money in an amount in excess of $20,000,000, each issuance of Equity Interests outside of the Rolling Period ending at ordinary course of business with a value in excess of $20,000,000, and each Transfer of any Collateral outside of the end ordinary course of business whether or not included in the Borrowing Base or the Term Borrowing Base with an aggregate value in excess of $20,000,000, in each case occurring during the period covered by the financial statements delivered with such certificate, (D) [reserved], (E) a calculation of the Fixed Charge Coverage Ratio (including, without limitation, EBITDA), in form and detail satisfactory to the Administrative Agent, and (F) to the extent not previously disclosed to the Administrative Agent, a description of any new Subsidiary and a listing of (i) any registrations, and applications for registration, of Specified Intellectual Property (x) both filed, acquired or made by, and owned by, any Loan Party, (y) exclusively licensed by any Loan Party, or (z) that no longer constitute Excluded Assets, (ii) any abandoned or lapsed registered Specified Intellectual Property owned by, or exclusively licensed by, any Loan Party, and (iii) any IP Agreements entered into, in each case of this clause (F) since the date of the most recent list delivered pursuant to this clause (F) (or, in the case of the first such list so delivered, since the Fourth Amendment Effective Date); provided, with respect to this clause (F), in the case of exclusively licensed Specified Intellectual Property, such updated listing will only be required if any Loan Party has actual or constructive knowledge of such Fiscal Year, the Adjusted EBITDA (and the calculation thereof) of each New Center constructed within the preceding 15 months, EBITDA of each bowling center acquired or constructed by the Borrower or any of its Subsidiaries after the First Closing Date and acquired or constructed at least 15 months prior to the end of such Rolling Period and all Other Additions, if any, for such Rolling Periodexclusively licensed Specified Intellectual Property.
Appears in 1 contract
Annual Financials. As Holdings shall post on the SEC XXXXX website, as soon as available and available, but in any event within 90 120 days (or such earlier date on which Holdings is required to file a Form 10-K under the Exchange Act, if applicable) after the end of each Fiscal Yearfiscal year of the Issuer, beginning with the fiscal year ending December 31, 2012, a copy of the annual audit report for such year for the Borrower and its Subsidiaries, including therein Consolidated consolidated and consolidating balance sheets sheet of the Borrower Holdings and its Subsidiaries as of the end of such Fiscal Year fiscal year, and Consolidated the related consolidated and consolidating statements of income and a Consolidated statement of income, cash flows of the Borrower and its Subsidiaries stockholder’s equity for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all prepared in accordance with GAAP, with such consolidated and consolidating financial statements to be audited and accompanied by an opinion not qualified as to scope or going concern of Arthxx Xxxexxxx, L.L.P. or other independent public accountants of nationally recognized standing acceptable to the Administrative Agent, together with (i) a certificate report and opinion of such Holdings’ independent certified public accounting firm to the Lender Parties stating that in the course of the regular audit of the business of the Borrower recognized national standing (which report and its Subsidiaries, which audit was conducted by such accounting firm opinion shall be prepared in accordance with generally accepted auditing standardsGAAP), stating that such accounting firm has obtained no knowledge that a Default has occurred and is continuing, or iffinancial statements fairly present, in all material respects, the opinion consolidated financial condition, results of such accounting firmoperations and cash flows of Holdings as of the dates and for the periods specified in accordance with GAAP, a Default has occurred and is continuing, a statement as to the nature thereof, (ii) a schedule in form satisfactory (if and only if Holdings is required to comply with the Administrative Agent internal control provisions pursuant to Section 404 of the computations used Xxxxxxxx-Xxxxx Act of 2002 requiring an attestation report of such independent certified public accounting firm) an attestation report of such independent certified public accounting firm as to Holdings’ internal controls pursuant to Section 404 of the Xxxxxxxx-Xxxxx Act of 2002 attesting that such internal controls meet the requirements of the Xxxxxxxx-Xxxxx Act of 2002. Such consolidated and consolidating financial statements shall be certified by such accountants in determininga Financial Officer as fairly presenting the consolidated and consolidating financial condition, results of operations and cash flows of Holdings and its Subsidiaries as of the end of such Fiscal Year, compliance with the covenants contained in Section 5.04, provided that in the event of any change in GAAP used in the preparation of such financial statements, the Borrower shall also provide, if necessary dates and for the determination of compliance periods specified in accordance with Section 5.04, a statement of reconciliation conforming such financial statements to GAAP and (iii) a certificate of a Designated Financial Officer (A) stating that no Default has occurred and is continuing or, if a default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto and (B) setting forth, for the Rolling Period ending at the end of such Fiscal Year, the Adjusted EBITDA (and the calculation thereof) of each New Center constructed within the preceding 15 months, EBITDA of each bowling center acquired or constructed by the Borrower or any of its Subsidiaries after the First Closing Date and acquired or constructed at least 15 months prior to the end of such Rolling Period and all Other Additions, if any, for such Rolling Periodconsistently applied.
Appears in 1 contract
Samples: Indenture (Imperial Holdings, Inc.)
Annual Financials. As soon as available and in any event within 90 days after the end of each Fiscal Yearfiscal year, a copy (I) consolidated statements of the annual audit report operations, cash flows and stockholders' equity of Borrower and its Consolidated Subsidiaries for such year for and the related consolidated balance sheet of Borrower and its SubsidiariesConsolidated Subsidiaries as at the end of such year, including therein Consolidated and consolidating balance sheets of setting forth in each case in comparative form (i) the Borrower and its Subsidiaries corresponding consolidated information as of the end of and for the preceding fiscal year to the extent such Fiscal Year financial statements are available and (ii) the corresponding budget or plan for such period, and accompanied by an opinion, without a going concern or similar qualification or exception as to scope, thereon of Deloitte & Touche LLP or other independent certified public accountants of recognized national standing reasonably acceptable to Co-Syndication Agents and the Majority Lenders, which opinion shall state that said consolidated financial statements fairly present the consolidated financial condition, results of operations and cash flows of Borrower and its Consolidated Subsidiaries as at the end of, and for, such fiscal year in accordance with GAAP, consistently applied; and (II) consolidating statements of income and a Consolidated statement operations of cash flows of the Borrower and its Consolidated Subsidiaries for such Fiscal Yearyear and the related consolidating balance sheet of Borrower and its Consolidated Subsidiaries as at the end of such year, setting forth in each case accompanied by an opinion not qualified as to scope or going concern of Arthxx Xxxexxxx, L.L.P. or other independent public accountants of nationally recognized standing acceptable to the Administrative Agent, together with in comparative form (i) a certificate of such accounting firm to the Lender Parties stating that in the course of the regular audit of the business of the Borrower and its Subsidiaries, which audit was conducted by such accounting firm in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge that a Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default has occurred and is continuing, a statement as to the nature thereof, (ii) a schedule in form satisfactory to the Administrative Agent of the computations used by such accountants in determining, corresponding consolidating information as of the end of such Fiscal Year, compliance with the covenants contained in Section 5.04, provided that in the event of any change in GAAP used in the preparation of such financial statements, the Borrower shall also provide, if necessary and for the determination of compliance with Section 5.04, a statement of reconciliation conforming preceding fiscal year to the extent such financial statements to GAAP are available and (iiiii) a certificate of a Designated Financial Officer (A) stating that no Default has occurred the corresponding budget or plan for such period; Borrower shall supply such additional information and is continuing or, if a default has occurred and is continuing, a statement detail as to the nature thereof and the action any item or items contained in any such statement that the Borrower has taken and proposes to take Lenders may reasonably require; all such financial statements will be prepared in accordance with respect thereto and (B) setting forth, for the Rolling Period ending at the end of such Fiscal Year, the Adjusted EBITDA (and the calculation thereof) of each New Center constructed within the preceding 15 months, EBITDA of each bowling center acquired or constructed by the Borrower or any of its Subsidiaries after the First Closing Date and acquired or constructed at least 15 months prior to the end of such Rolling Period and all Other Additions, if any, for such Rolling Period.GAAP consistently applied;
Appears in 1 contract
Samples: Reaffirmation Agreement (Centennial Communications Corp /De)
Annual Financials. As soon as available and in any event within 90 ninety (90) days after the end of each Fiscal Year, a copy of the annual audit report for such year for the Borrower and its Subsidiaries, including therein a Consolidated balance sheet of the Borrower and its Subsidiaries, and consolidating balance sheets of the Borrower and its Subsidiaries Subsidiaries, as of the end of such Fiscal Year and a Consolidated and consolidating statements statement of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries Subsidiaries, and consolidating statements of income and consolidating statements of cash flows of the Borrower and its Subsidiaries, for such Fiscal Year, in each case setting forth in comparative form the corresponding figures for the prior Fiscal Year (provided that respect to the first Fiscal Year following the Closing Date, such comparative financial statements shall be prepared on a pro forma basis after giving effect to the Transaction) and the corresponding figures from the budget for such Fiscal Year and in each case accompanied (in the case of such Consolidated financial statements) by an opinion not qualified as to scope or going concern of Arthxx Xxxexxxx, L.L.P. Ernst & Young LLP or other independent certified public accountants of nationally recognized national standing acceptable to the Administrative Agent, (which opinion shall contain no qualification with respect to the continuance of the Borrower and its Subsidiaries as going concerns and shall state that such financial statements fairly present in all material respects the financial position of the Borrower and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the periods indicated, in each case in conformity with GAAP), together with (ia) a certificate letter of such accounting firm to the Administrative Agent and Lender Parties stating that in the course of the regular audit of the business of the Borrower and its Subsidiaries, which audit was conducted by such accounting firm in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge that a Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default has occurred and is continuing, a statement as to the nature thereof; provided, (ii) a schedule in form satisfactory to the Administrative Agent of the computations used by such accountants in determining, as of the end of such Fiscal Year, compliance with the covenants contained in Section 5.04, provided that in the event of any change in GAAP used in the preparation of such financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 5.04Article 8, a statement of reconciliation conforming such 111 104 financial statements to GAAP and GAAP, (iiib) a certificate of a Designated the Chief Financial Officer (A) of the Borrower stating that no Default has occurred and is continuing or, if a default Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto and (Bc) setting forth, for a schedule in form and detail satisfactory to the Rolling Period ending at Administrative Agent of the end of such Fiscal Year, the Adjusted EBITDA (and the calculation thereof) of each New Center constructed within the preceding 15 months, EBITDA of each bowling center acquired or constructed computations used by the Borrower or in determining compliance with the financial covenants contained in Article 8, provided, that in the event of any of its Subsidiaries after change in GAAP used in the First Closing Date and acquired or constructed at least 15 months prior to the end preparation of such Rolling Period and all Other Additionsfinancial statements, the Borrower shall also provide, if anynecessary for the determination of compliance with Article 8, for a statement of reconciliation conforming such Rolling Periodfinancial statements to GAAP.
Appears in 1 contract
Annual Financials. (i) As soon as available and in any event within 90 120 days after the end of each Fiscal Year, a copy of the annual audit report for such year for the Borrower MII and its Subsidiaries, including therein Consolidated and consolidating balance sheets of the Borrower MII and its Subsidiaries as of the end of such Fiscal Year and Consolidated and consolidating statements of income and a Consolidated statement of cash flows of the Borrower MII and its Subsidiaries for such Fiscal Year, in each case accompanied by an opinion not qualified as to scope or going concern of Arthxx Xxxexxxx, L.L.P. Pricewaterhouse Coopers LLP or other independent public accountants of nationally recognized standing reasonably acceptable to the Administrative AgentRequired Lenders that the consolidated financial statements of MII are prepared in accordance with generally accepted accounting principles, together with (i) a certificate of such accounting firm to the Lender Parties stating that in the course of the regular audit of the business of the Borrower MII and its Subsidiaries, which audit was conducted by such accounting firm in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge that a an Event of Default has occurred and is continuing, or if, in the opinion of such accounting firm, a an Event of Default has occurred and is continuing, a statement as to the nature thereof, (ii) a schedule in form reasonably satisfactory to the Administrative Agent Required Lenders of the computations used by such accountants in determining, as of the end of such Fiscal Year, compliance with the covenants contained in Section 5.04, provided that in the event of any change in GAAP generally accepted accounting principles used in the preparation of such financial statements, the Borrower MII shall also provide, if necessary for the determination of compliance with Section 5.04, a statement of reconciliation conforming such financial statements to GAAP and (iii) a certificate of a Designated the Chief Financial Officer (A) of MII stating that no Event of Default has occurred and is continuing or, if a default an Event of Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower MII has taken and proposes to take with respect thereto thereto.
(ii) As soon as available and in any event within 120 days after the end of each Fiscal Year, a copy the annual unaudited (BA) setting forthconsolidated balance sheets of JRMSA and its Subsidiaries and consolidated balance sheets of BWXT and its Subsidiaries, for the Rolling Period ending at in each case as of the end of such Fiscal Year, and (B) consolidated statements of income and cash flows of JRMSA and Subsidiaries and consolidated statements of income and cash flows of BWXT and its Subsidiaries, in each case for such Fiscal Year, in each case duly certified by the Adjusted EBITDA Chief Financial Officer of MII as having been prepared in accordance with generally accepted accounting principles (subject to normal year-end audit adjustments and the calculation thereof) absence of each New Center constructed within complete footnotes), together with a schedule in form reasonably satisfactory to the preceding 15 monthsRequired Lenders of the computations used by such officer in determining, EBITDA as of each bowling center acquired or constructed by the Borrower or any of its Subsidiaries after the First Closing Date and acquired or constructed at least 15 months prior to the end of such Rolling Period Fiscal Year, compliance with the covenants contained in Section 5.04 applicable to each of JRMSA and all Other Additionsits Subsidiaries and BWXT and its Subsidiaries, provided that in the event of any change in generally accepted accounting principles used in the preparation of such financial statements, MII shall also provide, if anynecessary for the determination of compliance with Section 5.04, for a statement of reconciliation conforming such Rolling Periodfinancial statements to GAAP.
Appears in 1 contract
Samples: Omnibus Credit Agreement (McDermott International Inc)
Annual Financials. As soon as available and in any event within 90 95 days after the end of each Fiscal YearYear in the case of each Fiscal Year after the Fiscal Year ended December 31, 2003, a copy of the annual audit report for such year Fiscal Year for the Borrower and its Subsidiaries, including therein the Consolidated and consolidating balance sheets of the Borrower and its Subsidiaries as of the end of such Fiscal Year and Consolidated and consolidating statements of income operations, stockholders’ equity and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for such Fiscal Year, in each case accompanied by an unqualified opinion, or an opinion not qualified as otherwise reasonably acceptable to scope the Required Lenders, of KPMG, LLP or going concern of Arthxx Xxxexxxxany other internationally recognized accounting firm, L.L.P. or other independent public accountants of nationally recognized standing reasonably acceptable to the Administrative Agent, setting forth in comparative form, in the case of each such Consolidated balance sheet, the corresponding figures as of the last day of the immediately preceding Fiscal Year, and, in the case of each such Consolidated statement of operations, stockholders’ equity and cash flows, the corresponding figures for the corresponding period in the immediately preceding Fiscal Year, together with (i) a certificate of such accounting firm to the Lender Parties stating that in the course of the regular audit of the business of the Borrower and its Subsidiaries, which audit was conducted by such accounting firm in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge that a Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default has occurred and is continuing, a statement as to the nature thereof, (ii) a schedule in form satisfactory to the Administrative Agent of the computations used by such accountants in determining, as of the end of such Fiscal Year, compliance with the covenants contained in Section 5.045.04 (including with respect to each such Section, provided that where applicable, the calculations of the maximum or minimum amount, ratio or percentage, as the case may be, permissible under the terms of such Section, and the calculation of the amount, ratio or percentage then in existence), (ii) in the event of any change in GAAP the generally accepted accounting principles used by the Borrower in the preparation of such the audited Consolidated financial statementsstatements referred to above in this Section 5.03(c) from GAAP, the Borrower shall also provideprovide a reasonably detailed description of such changes and, if and to the extent necessary for the determination of compliance with Section 5.02(g) or 5.04, a statement of reconciliation conforming such audited Consolidated financial statements to GAAP GAAP, and (iii) in the event that the Borrower receives a certificate of letter from KPMG, LLP or other independent public accountants that a Designated Financial Officer (A) stating that no Default has occurred and is continuing or, if a default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto and (B) setting forth, for the Rolling Period ending at the end copy of such Fiscal Year, the Adjusted EBITDA (and the calculation thereof) of each New Center constructed within the preceding 15 months, EBITDA of each bowling center acquired or constructed by the Borrower or any of its Subsidiaries after the First Closing Date and acquired or constructed at least 15 months prior to the end of such Rolling Period and all Other Additions, if any, for such Rolling Periodletter.
Appears in 1 contract
Samples: Credit Agreement (Caremark Rx Inc)
Annual Financials. As soon as available and in any event within 90 days (or, if SEC Form 12b-25 is filed in respect of such fiscal year, 105 days) after the end of each Fiscal Yearfiscal year, a copy consolidated statements of the annual audit report operations, cash flows and stockholders' equity of Borrower and its Consolidated Subsidiaries for such year for and the related consolidated balance sheet of Borrower and its SubsidiariesConsolidated Subsidiaries as at the end of such year, including therein Consolidated and consolidating balance sheets of setting forth in each case in comparative form (i) the Borrower and its Subsidiaries corresponding consolidated information as of the end of such Fiscal Year and Consolidated for the preceding fiscal year (provided that for purposes of any fiscal year ending on or prior to the first anniversary of the Amendment and consolidating statements of income and Restatement Date, this clause (i) shall only require a Consolidated pro forma consolidated statement of operations for the preceding fiscal year that gives effect to the Amended and Restated Transactions and all other Acquisitions that shall have occurred during the preceding fiscal year as if they occurred on the first day of such preceding fiscal year) and (ii) the corresponding budget or plan for such period, and, in the case of the foregoing consolidated financial statements, accompanied by an opinion, without material qualification, thereon of independent certified public accountants of recognized national standing, which opinion shall state that said consolidated financial statements fairly present the consolidated financial condition, results of operations and cash flows of the Borrower and its Consolidated Subsidiaries for as at the end of, and for, such Fiscal Year, in each case accompanied by an opinion not qualified as to scope or going concern of Arthxx Xxxexxxx, L.L.P. or other independent public accountants of nationally recognized standing acceptable to the Administrative Agent, together with (i) a certificate of such accounting firm to the Lender Parties stating that in the course of the regular audit of the business of the Borrower and its Subsidiaries, which audit was conducted by such accounting firm fiscal year in accordance with generally accepted auditing standardsGAAP, consistently applied; Borrower shall supply such accounting firm has obtained no knowledge that a Default has occurred additional information and is continuing, or if, in the opinion of such accounting firm, a Default has occurred and is continuing, a statement detail as to the nature thereof, any item or items contained on any such statement that Lenders (ii) a schedule in form satisfactory to the Administrative Agent of extent applicable) may reasonably require; all such information will be prepared in accordance with GAAP consistently applied; in addition, Borrower shall provide consolidated financial statements for Foreign Subsidiaries (if any) for the computations used by such accountants same periods in determining, as of the end of such Fiscal Year, compliance fiscal years 2000 and thereafter substantially consistent with the covenants contained in Section 5.04, provided that in the event of any change in GAAP used in the preparation of such financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 5.04, a statement of reconciliation conforming such financial statements to GAAP and (iii) a certificate of a Designated Financial Officer (A) stating that no Default has occurred and is continuing or, if a default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto and (B) setting forth, for the Rolling Period ending at the end of such Fiscal Year, the Adjusted EBITDA (and the calculation thereof) of each New Center constructed within the preceding 15 months, EBITDA of each bowling center acquired or constructed by the Borrower or any of its Subsidiaries after the First Closing Date and acquired or constructed at least 15 months prior to the end of such Rolling Period and all Other Additions, if any, for such Rolling Period.foregoing;
Appears in 1 contract
Annual Financials. As soon as available and in any event within 90 (x) with respect to the Fiscal Year ending December 31, 1998, one hundred twenty (120) days after the end of such Fiscal Year, and (y) thereafter, ninety (90) days after the end of each Fiscal Year, a copy of the annual audit report for such year for the Borrower and its Subsidiaries, including therein Consolidated and consolidating a consolidated (or combined, as applicable) balance sheets sheet of the Borrower and its Subsidiaries Subsidiaries, as of the end of such Fiscal Year and Consolidated and consolidating statements a consolidated (or combined, as applicable) statement of income and a Consolidated consolidated (or combined, as applicable) statement of cash flows of the Borrower and its Subsidiaries Subsidiaries, for such Fiscal Year, in each case setting forth in comparative form (in accordance with GAAP) the corresponding figures for the prior Fiscal Year and in each case accompanied by an unqualified opinion not qualified as to scope or going concern of Arthxx Xxxexxxx, L.L.P. or other an independent certified public accountants accountant of nationally recognized national standing reasonably acceptable to the Administrative Agent, together (except for the fiscal year ending December 31, 1998) with (ia) a certificate letter of such accounting firm to the Administrative Agent and Lender Parties stating that in the course of the regular audit of the business of the Borrower and its Subsidiaries, which audit was conducted by such accounting firm in accordance with generally accepted auditing standards, nothing has come to the attention of such accounting firm has obtained no knowledge that a Default has occurred and is continuingcaused it to believe that the Borrower or its Subsidiaries was not in compliance with Article 8 or Section 6.17 of this Agreement, or if, in the opinion of such accounting firm, such a Default has occurred and is continuing, a statement as to the nature thereof; PROVIDED, (ii) a schedule in form satisfactory to the Administrative Agent of the computations used by such accountants in determining, as of the end of such Fiscal Year, compliance with the covenants contained in Section 5.04, provided that in the event of any change in GAAP used in the preparation of such financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 5.04Article 8, a statement of reconciliation conforming such financial statements to GAAP and (iiib) a certificate of a Designated the Chief Financial Officer (A) stating of the Borrower stating, on behalf of the Borrower, that no Default has occurred and is continuing or, if a default Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto thereto. With respect to the financial statements covering the Fiscal Year ending December 31, 1998, such financial statements shall be accompanied by a Compliance Certificate and a schedule of the type provided in clauses (i) and (B) setting forthii), for the Rolling Period ending at the end respectively, of such Fiscal Year, the Adjusted EBITDA (and the calculation thereof) of each New Center constructed within the preceding 15 months, EBITDA of each bowling center acquired or constructed by the Borrower or any of its Subsidiaries after the First Closing Date and acquired or constructed at least 15 months prior to the end of such Rolling Period and all Other Additions, if any, for such Rolling PeriodSection 7.3 above.
Appears in 1 contract
Annual Financials. As soon as available and in any event within 90 days after the end of each Fiscal Year, a copy of the annual audit report for such year for the Borrower and its Subsidiaries, including therein Consolidated and consolidating balance sheets of the Borrower and its Subsidiaries as of the end of such Fiscal Year and Consolidated and consolidating statements of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for such Fiscal Year, and the annual internal operating statement, all in reasonable detail setting forth in comparative form the corresponding figures as of the end of and for the preceding Fiscal Year and prepared in accordance with GAAP (except for the annual internal operating statement) and, if applicable, containing disclosure of the effect on the financial position or results of operations of any change in the application of accounting principles and practices during the year in each case (except for the annual internal operating statement) accompanied by an opinion not qualified as acceptable to scope or going concern the Administrative Agent of Arthxx Xxxexxxx, L.L.P. or other independent public accountants of nationally recognized national standing reasonably acceptable to the Administrative AgentAgent (without a “going concern” or like qualification or exception and without any qualification or exception to the scope of such audit) to the effect that such Consolidated and consolidating 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, together with (i) a certificate of such accounting firm to the Lender Parties stating that in the course of the regular audit of the business of the Borrower and its Subsidiaries, which audit was conducted by such accounting firm in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge that a an Event of Default has occurred and is continuing, or if, in the opinion of such accounting firm, a an Event of Default has occurred and is continuing, a statement as to the nature thereof, (ii) a schedule in form satisfactory Compliance Certificate from the Borrower to the Administrative Agent of the computations used by such accountants in determining, as of the end of such Fiscal Year, compliance with the covenants contained in Section 5.04, provided that in the event of any change in GAAP generally accepted accounting principles used in the preparation of such financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 5.04, a statement description of reconciliation conforming such changes and the related effect on such financial statements to GAAP and (iii) (A) a certificate of a Designated Financial Officer (A) of the Borrower stating that no Event of Default has occurred and is continuing or, if a default an Event of Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto and (B) setting fortha schedule in form satisfactory to the Administrative Agent of the computations used in determining, for the Rolling Period ending at as of the end of such Fiscal Year, compliance with the Adjusted EBITDA (and the calculation thereof) of each New Center constructed within the preceding 15 months, EBITDA of each bowling center acquired or constructed by the Borrower or any of its Subsidiaries after the First Closing Date and acquired or constructed at least 15 months prior to the end of such Rolling Period and all Other Additions, if any, for such Rolling Periodcovenants contained in Section 5.04.
Appears in 1 contract
Samples: First Lien Credit Agreement (Landrys Restaurants Inc)
Annual Financials. As soon as available and in any event within 90 days after the end of each Fiscal Year, a copy of the annual audit report for such year for the Borrower and its Subsidiaries, including therein Consolidated and consolidating balance sheets of the Borrower and its Subsidiaries as of the end of such Fiscal Year and Consolidated and consolidating statements of income and a Consolidated statement of cash flows of the Borrower and its Subsidiaries for such Fiscal Year, in each case accompanied by an opinion not qualified as to scope or going concern of Arthxx XxxexxxxAndexxxx, L.L.P. X.L.P. or other independent public accountants of nationally recognized standing acceptable to the Administrative Agent, together with (i) a certificate of such accounting firm to the Lender Parties stating that in the course of the regular audit of the business of the Borrower and its Subsidiaries, which audit was conducted by such accounting firm in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge that a Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default has occurred and is continuing, a statement as to the nature thereof, (ii) a schedule in form satisfactory to the Administrative Agent of the computations used by such accountants in determining, as of the end of such Fiscal Year, compliance with the covenants contained in Section 5.04, provided that in the event of any change in GAAP used in the preparation of such financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 5.04, a statement of reconciliation conforming such financial statements to GAAP and (iii) a certificate of a Designated Financial Officer (A) stating that no Default has occurred and is continuing or, if a default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto and (B) setting forth, for the Rolling Period ending at the end of such Fiscal Year, the Adjusted EBITDA (and the calculation thereof) of each New Center constructed within the preceding 15 months, EBITDA of each bowling center acquired or constructed by the Borrower or any of its Subsidiaries after the First Closing Date and acquired or constructed at least 15 months prior to the end of such Rolling Period and all Other Additions, if any, for such Rolling Period.. 151 121
Appears in 1 contract
Samples: Credit Agreement (Amf Group Inc)
Annual Financials. As soon as available and in any event within 90 days after the end of each Fiscal Yearfiscal year beginning with the fiscal year ending December 31, a copy 1998, consolidated statements of the annual audit report operations, cash flows and stockholders' equity of Borrower and its Consolidated Subsidiaries for such year for and the related consolidated balance sheet of Borrower and its SubsidiariesConsolidated Subsidiaries as at the end of such year, including therein Consolidated and consolidating balance sheets of setting forth in each case in comparative form (i) the Borrower and its Subsidiaries corresponding consolidated information as of the end of such Fiscal Year and Consolidated and consolidating statements for the preceding fiscal year (provided that for purposes of income and any fiscal year ending on or prior to the first anniversary after the Closing Date, this clause (i) shall only require a Consolidated pro forma consolidated statement of operations for the preceding fiscal year that gives effect to the Transactions as if they occurred on the first day of such preceding fiscal year) and (ii) the corresponding budget or plan for such period, and, in the case of the foregoing consolidated financial statements, accompanied by an opinion, without material qualification, thereon of independent certified public accountants of recognized national standing, which opinion shall state that said consolidated financial statements fairly present the consolidated financial condition, results of operations and cash flows of the Borrower and its Consolidated Subsidiaries as at the end of, and for, such fiscal year in accordance GAAP, consistently applied; Borrower shall supply such additional information and detail as to any item or items contained on any such statement that Lenders (to the extent applicable) may reasonably require; all such information will be prepared in accordance with GAAP consistently applied; in addition, Borrower shall provide consolidated financial statements for Foreign Subsidiaries (if any) for the same periods in fiscal years 1998 and thereafter substantially consistent with the foregoing;"
(f) Section 9.06 is amended by (i) deleting the entire text of Section 9.06(i)(xi) and replacing it with the following:
(i) the Acquisition Consideration for such Fiscal Year, in each case accompanied by an opinion not qualified as to scope or going concern of Arthxx Xxxexxxx, L.L.P. or other independent public accountants of nationally recognized standing acceptable to the Administrative AgentAcquisition, together with the aggregate amount of the Acquisition Consideration for all Acquisitions (iother than Acquisitions made pursuant to Sections 9.06(m) a certificate and 9.06(o) below) effected pursuant to this Section 9.06(i) since the Closing Date, shall not exceed $20.0 million (PROVIDED, HOWEVER that any portion of such accounting firm to the Lender Parties stating Acquisition Consideration that consists of an "earn-out" or similar payment shall not exceed $5.0 million in the course aggregate since the Closing Date), PLUS the then available amount of the regular audit of the business of the Borrower Designated Equity Issuance Proceeds but not to exceed $20.0 million." and its Subsidiaries, which audit was conducted by such accounting firm in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge that a Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default has occurred and is continuing, a statement as to the nature thereof, (ii) a schedule in form satisfactory to by deleting the Administrative Agent of the computations used by such accountants in determining, as of the end of such Fiscal Year, compliance with the covenants contained in Section 5.04, provided that in the event of any change in GAAP used in the preparation of such financial statements, the Borrower shall also provide, if necessary for the determination of compliance with Section 5.04, a statement of reconciliation conforming such financial statements to GAAP and (iii) a certificate of a Designated Financial Officer (A) stating that no Default has occurred and is continuing or, if a default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto and (B) setting forth, for the Rolling Period ending "and" at the end of such Fiscal YearSection 9.06(m), deleting the Adjusted EBITDA (and the calculation thereof) of each New Center constructed within the preceding 15 months, EBITDA of each bowling center acquired or constructed by the Borrower or any of its Subsidiaries after the First Closing Date and acquired or constructed "." at least 15 months prior to the end of such Rolling Period Section 9.06(n) and all Other Additionsreplacing it with "; and" and by adding the following immediately after Section 9.06(n): "(o) the Champagne Acquisition and the Heat Acquisition."
(g) Section 9.08 is amended by deleting the "and" at the end of Section 9.08(k), if any, for such Rolling Perioddeleting the "." at the end of Section 9.08(l) and replacing it with "; and" and by adding the following immediately after Section 9.06(l):
Appears in 1 contract
Samples: Credit Agreement (Best Built Inc)
Annual Financials. As soon as available and in any event ----------------- within 90 120 days after the end of each Fiscal Year, (i) a copy of the annual audit report for such year Fiscal Year for the Borrower Fox Kids and its Subsidiaries, including therein the Consolidated and consolidating balance sheets of the Borrower Fox Kids and its Subsidiaries as of the end of such Fiscal Year and Consolidated and consolidating statements of income operations, stockholders' equity and a Consolidated statement of cash flows of the Borrower Fox Kids and its Subsidiaries for such Fiscal Year, in each case accompanied by an unqualified opinion not qualified as or an opinion otherwise acceptable to scope or going concern the Required Lenders of Arthxx Xxxexxxx, L.L.P. Ernst & Young LLP or other independent public accountants of nationally recognized standing reasonably acceptable to the Administrative AgentRequired Lenders and (ii) unaudited consolidated balance sheets of each of FCN Holding and its Subsidiaries, Saban and its Subsidiaries and the Surviving Corporation and its Subsidiaries as of the end of such Fiscal Year and unaudited consolidated statements of operations, stockholders' equity and cash flows of each of FCN Holding and its Subsidiaries, Saban and its Subsidiaries and the Surviving Corporation and its Subsidiaries for such Fiscal Year, setting forth in comparative form, in the case of each such consolidated balance sheet, the corresponding figures as of the last day of the immediately preceding Fiscal Year from the consolidated balance sheet for such Persons for such immediately preceding Fiscal Year and, in the case of each such consolidated statement of operations, stockholders' equity and cash flows, the corresponding figures for the immediately preceding Fiscal Year, all in reasonable detail, together with (i) a certificate of such accounting firm to the Lender Parties stating that in the course of the regular audit of the business of the Borrower and its Subsidiaries, which audit was conducted by such accounting firm in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge that a Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default has occurred and is continuing, a statement as to the nature thereof, (iiA) a schedule in form reasonably satisfactory to the Administrative Agent of the computations used by such accountants in determining, as of the end of such Fiscal Year, compliance with the covenants contained in Section 5.04Sections 5.02(g)(i)(G), provided that 5.02(h)(i)(G) and 5.04 (including with respect to each such Section, where applicable, the calculations of the maximum or minimum amount, ratio or percentage, as the case may be, permissible under the terms of such Section, and the calculation of the amount, ratio or percentage then in existence) and (B) in the event of any change in GAAP the generally accepted accounting principles used by such accountants in the preparation of the audited financial statements referred to in clause (i) of this Section 5.03(c), such financial statements, the Borrower accountants shall also provideprovide a reasonably detailed description of such changes and, if and to the extent necessary for the determination of compliance with Section 5.02(g)(i)(G), 5.02(h)(i)(G) or 5.04, a statement of reconciliation conforming such audited financial statements to GAAP and (iii) a certificate of a Designated Financial Officer (A) stating that no Default has occurred and is continuing or, if a default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower has taken and proposes to take with respect thereto and (B) setting forth, for the Rolling Period ending at the end of such Fiscal Year, the Adjusted EBITDA (and the calculation thereof) of each New Center constructed within the preceding 15 months, EBITDA of each bowling center acquired or constructed by the Borrower or any of its Subsidiaries after the First Closing Date and acquired or constructed at least 15 months prior to the end of such Rolling Period and all Other Additions, if any, for such Rolling PeriodGAAP.
Appears in 1 contract
Samples: Credit Agreement (Fox Television Stations Inc /De/)
Annual Financials. As soon as available and in any event (i) With respect to Express, Xxx.Xxxxxxxx, within 90 120 days after the end of each Fiscal Year, a copy of the annual audit report for such year for the Borrower and its SubsidiariesExpress, including therein Consolidated and consolidating balance sheets of the Borrower and its Subsidiaries Xxx.Xxxxxxxx, as of the end of such Fiscal Year and a Consolidated and consolidating statements balance sheet, statementstatements of income income, and a Consolidated statement of cash flows of the Borrower and its Subsidiaries Express, Xxx.Xxxxxxxx for such Fiscal Year, in each case accompanied by an opinion not qualified as to scope or going concern such audit report of Arthxx Xxxexxxx, L.L.P. any of the “Big 4” accounting firms or other independent public accountants of nationally recognized standing reasonably acceptable to the Administrative Agent, together with (i) which opinion shall not have any “going concern” qualification, except to the extent that such a certificate “going concern” qualification relates to the report and opinion accompanying the financial statements for the Fiscal Year immediately prior to the stated final maturity date of the Advances and which qualification or statement is solely a consequence of such accounting firm to the Lender Parties stating that in the course of the regular audit of the business of the Borrower and its Subsidiariesimpending stated final maturity date under this Agreement; provided that, which audit was conducted by such accounting firm in accordance with generally accepted auditing standards, such accounting firm has obtained no knowledge that a Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default has occurred and is continuing, a statement as to the nature thereof, (ii) a schedule in form satisfactory to the Administrative Agent of the computations used by such accountants in determining, as of the end of such Fiscal Year, compliance with the covenants contained in Section 5.04, provided that in the event of any change in GAAP used in the preparation of such financial statements, the Borrower Parent shall also provide, if necessary for the determination provide a reconciliation of compliance with Section 5.04, a statement of reconciliation conforming such financial statements to former GAAP.
(ii) Incidental to the delivery of the reporting required in subparagraph (b)(i) above, within 120 days after the end of each Fiscal Year, derivative reconciliations with respect to the Parent and its Restricted Subsidiaries (other than the Foreign Subsidiaries) (in the form delivered prior to April 13, 2015 or anotherin a form reasonably satisfactory to the Administrative Agent) as of the end of such Fiscal Year, covering balance sheets, statements of income, and statements of cash flows, all in reasonable detail and duly certified (subject to normal year-end audit adjustments) by a Responsible Officer of the Parent as having been prepared in accordance with GAAP and (iiiother than the absence of footnotes), together with (wA) a certificate on behalf of the Parent signed by a Designated Financial Responsible Officer (A) of the Parent stating that no Default has occurred and is continuing or, if a default Default has occurred and is continuing, a statement as to the nature thereof and the action that the Borrower Parent has taken and proposes to take with respect thereto thereto, (xB) a schedule prepared by a Responsible Officer of the Parent in form satisfactory to the Administrative Agent of the computations used by the Parent in determining a pro forma calculation of the Leverage Ratio, (yC) a certificate on behalf of the Parent signed by a Responsible Officer of the Parent (1) listing all Unrestricted Subsidiaries at such time and certifying that each Subsidiary set forth on such list qualifies as an Unrestricted Subsidiary, and (Bz2) setting forthattaching a reconciliation statement reflecting the adjustments necessary to eliminate the assets, liabilities, revenuerevenues , expenses and net income of the Unrestricted Subsidiaries in such financial statements (it being understood and agreed that such reconciliation statements shall not be audited) or, in the case of the first such list so delivered, since the Second Amendment Effective Date, and (3) certifying that no Subsidiary is a Foreign Subsidiary, Excluded Subsidiary, or an Unrestricted Subsidiary, (D) [reserved], (E) a calculation of the Fixed Charge Coverage Ratio (including, without limitation, EBITDA), in form and detail satisfactory to the Administrative Agent, and (F) to the extent not previously disclosed to the Administrative Agent, a description of any new Subsidiary and a listing of any registrations, and applications for the Rolling Period ending at the end registration, of such Fiscal YearIntellectual Property filed, the Adjusted EBITDA (and the calculation thereof) of each New Center constructed within the preceding 15 months, EBITDA of each bowling center acquired or constructed made by the Borrower any Loan Party or that are no longer Excluded Assets, or any abandoned or lapsed registered Intellectual Property of its Subsidiaries after any Loan Party, in each case since the First Closing Date and acquired or constructed at least 15 months prior date of the most recent list delivered pursuant to this clause (F) (or, in the end case of the first such Rolling Period and all Other Additionslist so delivered, if any, for such Rolling Periodsince the Second Amendment Effective Date).
Appears in 1 contract
