Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following: (i) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30, 2005), the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments. (i) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices). (c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail; (d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them; (e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1; (f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency; (g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000; (h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto; (i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and (j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 9 contracts
Samples: Credit Agreement (American States Water Co), Credit Agreement (American States Water Co), Credit Agreement (Golden State Water CO)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(i) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30, 2005), the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ ' Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
(i) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s 's or its Subsidiaries’ ' applicable process of management of accounts, (ii) such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “"management letter” " prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 3 contracts
Samples: Credit Agreement (American States Water Co), Credit Agreement (American States Water Co), Credit Agreement (American States Water Co)
Financial and Business Information. So long as any Advance remains unpaid, unpaid or any other Obligation remains unpaid, or any portion of any of the Commitments Commitment remains in force, Borrower and each Co-Borrower shall, unless the Administrative Agent (with the written approval of the Requisite LendersBanks) otherwise consents, at Borrower’s 's and the Co-Borrowers' sole expense, deliver to the Administrative Agent for distribution by it to the LendersBanks, a sufficient number of copies for all of the Lenders Banks of the following:
(ia) As soon as practicable, and in any event within fifty (50) 60 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidated and consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidated and consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred 45 days after the end of each Fiscal Quarter, a Pricing Certificate setting forth a preliminary calculation of the Leverage Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of Borrower for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Leverage Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(100c) As soon as practicable, and in any event within 105 days after the end of each Fiscal Year, (i) the consolidated and consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidated and consolidating and consolidated statements of income, operations, stockholders’ shareholders' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP one of the six largest public accounting firms in the United States of America or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite LendersBanks, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Banks in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Banks. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 6.8 and 6.136.9, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cd) As soon as practicable, and in any event not later than sixty (60) within 45 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next two succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected consolidated balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows, of Borrower and its Subsidiaries, all in reasonable detail;
(de) Promptly after request by the Administrative Agent or any LenderBank, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Borrower by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(ef) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders Banks pursuant to other provisions of this Section 7.1Section;
(fg) Promptly after request by Lenderthe Administrative Agent or any Bank, subject to confidentiality requirements copies of the Nevada "Regulation 6.090 Report" and "6-A Report";
(h) Promptly after request by the Administrative Agent or any Governmental AgencyBank, copies of any other report or other document that was filed by Borrower, Borrower or any of its Subsidiaries with any Governmental AgencyAgency (other than any report regarding Tracinda Corporation or individuals associated with Tracinda Corporation, Borrower and its Subsidiaries and their confidential business or financial information);
(gi) Promptly upon a Senior Officer of Borrower, becoming awareAs soon as practicable, and in any event within five (5) ten Banking Days after becoming aware, a Senior Officer of Borrower or any Co-Borrower becomes aware of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving in connection with any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) five Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower or any of its Subsidiaries is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hj) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower or any Co-Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is or its Subsidiaries are taking or proposes propose to take with respect thereto;
(ik) Promptly upon a Senior Officer of Borrower or any Co-Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 5,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a written credit agreement or material lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries orSubsidiaries, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 25,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, (iv) any labor union has notified Borrower of its intent to strike Borrower or any of its Subsidiaries on a date certain and such strike would involve more than 100 employees of Borrower or its Subsidiaries, or (v) any Gaming Board has indicated its intent to consider or act upon a License Revocation or a fine or penalty of $1,000,000 or more with respect to Borrower or any of its Subsidiaries, a written notice describing the pertinent facts relating thereto and what action Borrower and/or or its applicable Subsidiaries are taking or propose to take with respect thereto;
(l) As soon as practicable, and in any event by the thirtieth day in the next following month, an operating revenue report for the preceding calendar month with respect to each operating casino property of Borrower and its Subsidiaries (including the Australia Companies), segmented for each such casino property and otherwise in a form reasonably acceptable to the Administrative Agent, together with a written narrative statement discussing any significant trends reflected therein signed by a Senior Officer of Borrower;
(m) Promptly following any Senior Officer of Borrower or any Co-Borrower becoming aware of any change in the credit ratings assigned by Xxxxx'x or S&P to the credit facilities provided hereunder (whether senior secured or senior unsecured) written notice of such change and, if the same will result in a revision to the Debt Rating, a revised Pricing Certificate setting forth the revised Debt Rating; and
(jn) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Bank (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsBanks.
Appears in 3 contracts
Samples: 364 Day Loan Agreement (MGM Mirage), 364 Day Loan Agreement (MGM Mirage), 364 Day Loan Agreement (MGM Mirage)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaidunpaid or unperformed, or any portion of any of the Commitments Commitment remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to and the Lenders, a sufficient number of copies for all of the Lenders of the followingat Borrower's sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 60 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such each Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and (ii) the consolidating (in accordance with past consolidating practices of Borrower) balance sheets and statements of operations as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred (100) 100 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ shareholders' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year and (ii) consolidating (in accordance with past consolidating practices of Borrower) balance sheets and statements of operations, in each case as at and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers Xxxxxx Xxxxxxxx LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, exceptions as to the scope of the audit nor to any other qualification or exception determined by the Requisite Lenders in their good faith business judgment to be adverse to the interests of the Lenders. Such accountants' report and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report opinion shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 Section 6.11 and 6.136.12, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(c) As soon as practicable, and in any event not later than sixty (60) within 100 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next four succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected quarterly consolidated balance sheets, statements statement of operations and statements of cash flow and, for the remaining four Fiscal Years, projected annual consolidated condensed balance sheets and statements of operations and cash flow, of Borrower and its Subsidiaries, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any LenderCreditor, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Borrower by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(e) As soon as practicable, and in any event (i) within 30 days after the end of the first three Fiscal Quarters in each Fiscal Year, and (ii) 60 days after the end of the fourth Fiscal Quarter in each Fiscal Year, a written report, in form and detail mutually acceptable to Borrower and the Administrative Agent, with a narrative report describing the results of operations of Borrower and its Subsidiaries during such Fiscal Quarter and detailing the status of development of each New Venture Entity, including the amounts of Capital Expenditures and Investments made, and reasonably anticipated to be made, with respect thereto;
(f) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended, 1934 and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1Section;
(fg) Promptly after the same are available, copies of the Nevada "Regulation 6.090 Report" and "6-A Report" and copies of any written communication to Borrower or any of its Restricted Subsidiaries from any Gaming Board advising it of a violation of or non-compliance with, any Gaming Law by Borrower or any of its Subsidiaries;
(h) Promptly after request by Lender, subject to confidentiality requirements of any Governmental AgencyCreditor, copies of any other report or other document that was filed by Borrower, Borrower or any of its Restricted Subsidiaries with any Governmental Agency;
(gi) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Business Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving in connection with any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking five Business Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower or any of its Restricted Subsidiaries is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hj) As soon as practicable, and in any event within two (2) Banking Business Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Business Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is or any of its Restricted Subsidiaries are taking or proposes propose to take with respect thereto;
(ik) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Restricted Subsidiaries that is $250,000 10,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a written credit agreement or material lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries orRestricted Subsidiaries, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Restricted Subsidiaries under a contract that is not a credit agreement or material lease with respect to a lease, which claim of is in excess of $250,000 10,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, (iv) any labor union has notified Borrower of its intent to strike Borrower or any of its Restricted Subsidiaries on a date certain and such strike would involve more than 100 employees of Borrower and its Restricted Subsidiaries, or (v) any Gaming Board has indicated its intent to consider or act upon a License Revocation or a fine or penalty of $1,000,000 or more with respect to Borrower or any of its Restricted Subsidiaries, a written notice describing the pertinent facts relating thereto and what action Borrower and/or or its applicable Restricted Subsidiaries are taking or propose to take with respect thereto; and
(jl) Such other data and information as from time to time may be reasonably requested by any Creditor through the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsAgent.
Appears in 3 contracts
Samples: Term Loan Agreement (Mandalay Resort Group), Revolving Loan Agreement (Mandalay Resort Group), Capital Markets Term Loan Agreement (Mandalay Resort Group)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver Deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the followingBank:
(ia) As soon as practicable, and in any event within fifty Within forty-five (5045) days after the end close of each Fiscal Quarter ending March 31of the first three fiscal quarters of each fiscal year of the Parent (or, June 30 and September 30 if earlier, within three (commencing 3) days after the Parent files its Quarterly Report on Form 10-Q for with the Fiscal Quarter ending June 30, 2005Securities and Exchange Commission for such fiscal quarter), the consolidating and a consolidated balance sheet of Borrower the Parent and its Subsidiaries as at of the end close of such Fiscal Quarter and the consolidating fiscal quarter and consolidated statements of income, operations income and cash flows for such Fiscal Quarter, the Parent and its Subsidiaries for the fiscal quarter then ended and for that portion of the Fiscal Year ended with such Fiscal Quarterfiscal year then ended, together with a statement of Stockholders’ Equity as of including the last day of such Fiscal Quarternotes to each, all in reasonable detaildetail setting forth in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with GAAP applied on a basis consistent with that of the preceding period or containing disclosure of the effect on the financial position or results of operation of any change in the application of accounting principles and practices during the period, subject only to audit and year-end adjustments, and certified by the Parent’s president or chief financial officer to be true and accurate;
(iib) Within one hundred twenty (120) days after the close of the fiscal year of the Parent (or, if earlier, within three (3) days after the Parent files its Annual Report on 10-K with the Securities and Exchange Commission for such fiscal year), an audited consolidated balance sheet of the Parent and its Subsidiaries as of the close of such fiscal year and audited consolidated statements of income and cash flows for the Parent and its Subsidiaries for the fiscal year then ended, including the notes to each, all in reasonable detail setting forth in comparative form the corresponding figures for the preceding fiscal year, prepared by an independent certified public accountant reasonably acceptable to the Bank, in accordance with GAAP applied on a basis consistent with that of the preceding year or containing disclosure of the effect on the financial position or results of operation of any change in the application of accounting principles and practices during the year, and accompanied by a report thereon by such certified public accountant containing an opinion that is not qualified with respect to scope limitations imposed by the Parent or its Subsidiaries or with respect to accounting principles followed by the Parent or its Subsidiaries not in accordance with GAAP;
(c) Concurrently with the delivery of the financial statements described in subsection (b) above, a certificate addressed to the Bank from the independent certified public accountant that in making its audit of the financial statements of the Parent and its Subsidiaries, it obtained no knowledge of the occurrence or existence of any Default or Event of Default under this Agreement, or specifying the nature and period of existence of any such Default or Event of Default; provided, however, that such accountant shall not be certified liable to anyone by reason of its failure to obtain knowledge of any such Default or Event of Default that would not be disclosed in the course of an audit conducted in accordance with generally accepted auditing standards;
(d) Concurrently with the delivery of the financial statements described in subsections (a) and (b) above, a Compliance Certificate with respect to the period covered by the financial statements being delivered thereunder, executed by the president or chief financial officer of Borrower as fairly presenting the Borrower, together with a Covenant Compliance Worksheet reflecting the computation of the financial condition, results covenants set forth in Article VI as of operations and cash flows the last day of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
(i) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered period covered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of themstatements;
(e) Promptly after the same are available, and in Prompt notice of any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;Material Adverse Change; and
(f) Promptly after request by LenderWithin a reasonable time, subject to confidentiality requirements of any Governmental Agencyupon the Bank’s request, copies of any such other report or other document that was filed by Borrowerinformation about the property, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, financial condition and in any event within five (5) Banking Days after becoming aware, operations of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof Parent and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of as the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise Bank may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsrequest.
Appears in 2 contracts
Samples: Loan Agreement (Fountain Powerboat Industries Inc), Loan Agreement (Fountain Powerboat Industries Inc)
Financial and Business Information. So long as any Advance Obligation (other than (i) contingent indemnification obligations as to which no claim has been asserted and (ii) Secured Hedging Obligations and Obligations under Secured Bank Products Agreements) remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 60 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet of Borrower Holdings and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and its statement of cash flows for such Fiscal Quarter, Quarter and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement (ii) if applicable and if requested by the Administrative Agent, the consolidating balance sheets and statements of Stockholders’ Equity operations, in each case as at and for the portion of the last day of Fiscal Year ended with such Fiscal Quarter, all in reasonable detail, and (iiiii) a report of the occupancy rate and average daily room rates at the Aliante Casino and Hotel during such Fiscal Quarter. Such financial statements shall be certified by the president or chief financial officer of Borrower a Senior Officer as fairly presenting the financial condition, results of operations and cash flows of Borrower Holdings and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-year end accruals accruals, audit adjustments and audit adjustments.adjustments for fresh start accounting;
(ib) As soon as practicable, and in any event within one hundred (100) 90 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet of Borrower Holdings and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholdersmembers’ equity and cash flows, in each case of Borrower Holdings and its Subsidiaries for such Fiscal Year and (ii) if applicable and if requested by the Administrative Agent, consolidating balance sheets and statements of operations, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders (it being understood that Ernst & Young, LLP is reasonably satisfactory to the Requisite Lenders), which report shall be prepared in accordance with Table of Contents generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations exceptions as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation scope of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detailaudit;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 2 contracts
Samples: Credit Agreement (ALST Casino Holdco, LLC), Credit Agreement (ALST Casino Holdco, LLC)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver The Company shall furnish to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the followingeach Major Stockholder:
(i) As 4.3.1 as soon as practicable, available and in any event within fifty (50) 120 days after the end of each Fiscal Quarter ending March 31fiscal year of the Company, June 30 and September 30 (commencing with a copy of the Fiscal Quarter ending June 30, 2005), the consolidating and audited consolidated balance sheet as of Borrower and its Subsidiaries as at the end of such Fiscal Quarter fiscal year and the consolidating and related audited consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations income and cash flows of Borrower the Company and its Subsidiaries subsidiaries, if any, on a consolidated basis, for such fiscal year, in each case (a) prepared in accordance with GAAP GAAP, (other than footnote disclosures)b) prepared in reasonable detail and including footnotes, consistently applied(c) certified by independent certified public accountants of recognized national standing as presenting fairly the consolidated financial position of the Company, as at such date (d) approved by the Board, (e) setting forth in comparative form the corresponding figures for preceding fiscal year and the figures for such periodsfiscal year set forth in the operating plan and budget delivered by the Company pursuant to Section 4.3(4) hereof, subject only and (f) accompanied by a report from the Company’s Chief Financial Officer (or other member of management acting in such capacity) summarizing the Company’s financial condition and results of operations during such fiscal year and in comparison to normal year-end accruals and audit adjustments.the periods set forth in (e) immediately preceding;
(i) As 4.3.2 as soon as practicable, available and in any event within one hundred (100) 45 days after the end of each Fiscal Yearfiscal quarter of the Company (other than the last quarter of each fiscal year) in the case of quarterly statements and within 30 days after the close of each month of each fiscal year in the case of monthly statements, a copy of the consolidating and unaudited consolidated balance sheet as of Borrower the end of the quarter or month and the related unaudited consolidated statements of income and cash flows of the Company and its Subsidiaries as subsidiaries, if any, on a consolidated basis, for the periods commencing at the end of such Fiscal Year the previous quarter or month and ending at the consolidating end of the quarter or month and consolidated statements commencing at the beginning of income, operations, stockholders’ equity the fiscal year and cash flowsending at the end of the quarter or month, in each case of Borrower and its Subsidiaries for such Fiscal Year(a) prepared in accordance with GAAP, all (b) prepared in reasonable detail. Such , (c) setting forth in comparative form the corresponding figures for the corresponding period of the preceding fiscal year and the figures for the period set forth in the operating plan and budget delivered by the Company pursuant to Section 4.3(4) hereof, and (d) in the case of quarterly financial statements, accompanied by a report from the Company’s Chief Financial Officer (or other member of management acting in such capacity) summarizing the Company’s financial condition and results of operations during such period and in comparison to the periods set forth in (c) immediately preceding;
4.3.3 promptly after the sending or filing thereof, copies of all financial statements and reports that the Company sends to its stockholders and copies of all regular, periodic, and special reports which the Company files with any governmental authority, including, without limitation the United States Securities and Exchange Commission;
4.3.4 as soon as available and in any event no later than 30 days prior to the first day of each fiscal year of the Company beginning after the date hereof, an annual operating plan and budget (including cash flow data) for the Company for the upcoming fiscal year, each prepared in reasonable detail, as each operating plan and budget has been approved by the Board of the Company; and
4.3.5 such other information relating to the financial condition, business or corporate affairs of the Company as the Major Stockholder may from time to time reasonably request; provided, however, that the Company shall not be obligated under this subsection 4.3.5 or any other subsection of 4.3 to provide information that (A) it deems in good faith to be a trade secret or similar confidential information or (B) the disclosure of which would adversely affect the attorney-client privilege between the Company and its counsel. All financial statements to be furnished by the Company pursuant to this Section 4.3 shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 2 contracts
Samples: Stockholders' Agreement (Vapotherm Inc), Stockholders Agreement (Vapotherm Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, The Company shall deliver to the Administrative Agent for distribution by it (who will promptly furnish to the Lenders):
(a) Monthly Deliveries: promptly, for each monthly period including the monthly period ending in the month immediately preceding the Termination Date (but excluding for purposes of clauses (i), (ii) and (iii) below, each December), a sufficient number of copies for all of the Lenders of the followingcopy of:
(i) As soon as practicable, and in any event within fifty (50) days after no later than the last Business Day of the month following the end of each Fiscal Quarter ending March 31monthly period, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30, 2005), the consolidating and Company prepared unaudited consolidated balance sheet sheets of Borrower the Company and its Subsidiaries as at the end of such Fiscal Quarter and month,
(ii) no later than the consolidating and last Business Day of the month following the end of each monthly period, Company prepared unaudited consolidated statements of income, operations income and cash flows changes in shareholders’ equity of the Company and its Subsidiaries for such Fiscal Quarter, month and (in the case of each month during the fiscal year except the first and last month) for the portion of the Fiscal Year fiscal year ending with such month,
(iii) with the delivery of the monthly financial statements described in (i) and (ii) above, Company prepared unaudited consolidated statements of income of the Company and its Subsidiaries for the twelve month period ended with such Fiscal Quartermonth, together with a statement of Stockholders’ Equity as and
(iv) no later than the last Business Day of the last day month following the end of each monthly period (or, in the case of each December, not later than 75 days after the end of such Fiscal Quartermonth), Company prepared unaudited statements of income for each dealership retail location for such month and (in the case of each month during the fiscal year except the first and last month) for the portion of the fiscal year ending with such month, setting forth in each case with respect to deliveries under clauses (i) and (ii), for each month in comparative form the figures for the corresponding periods in the previous fiscal year and the figures set forth for such periods in the Company’s budget for such fiscal year delivered to the Lenders pursuant to Section 6.01(m), all in reasonable detail, (ii) such financial statements shall be certified prepared by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
(i) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared Company in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied certified by a report any Responsible Officer of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards Company as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating thatfairly presenting, in making all material respects, the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation position of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower Company and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters and its results of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lenderoperations, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) nonchanges resulting from year-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsend adjustments.
Appears in 2 contracts
Samples: Credit Agreement (Camping World Holdings, Inc.), Credit Agreement (Camping World Holdings, Inc.)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(i) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30, 2005), the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
(i) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 2 contracts
Samples: Credit Agreement (American States Water Co), Credit Agreement (American States Water Co)
Financial and Business Information. So long as any Advance remains unpaid, or any Letter of Credit remains outstanding, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and quarterly unaudited consolidated financial statements, including a consolidated balance sheet sheet, income statement and statement of Borrower and its Subsidiaries cash flows of the Consolidated Group as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or Parent’s chief financial officer, chief accounting officer or vice president of Borrower finance as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries the Consolidated Group in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-year end accruals and audit adjustments.;
(b) As soon as practicable, and in any event within (i) fifty (50) days after the end of each Fiscal Quarter other than the fourth Fiscal Quarter in any Fiscal Year and (ii) one hundred (100) days after the end of such fourth Fiscal Quarter, a Compliance Certificate as of the last day of such Fiscal Quarter, providing reasonable detail as to the calculation thereof;
(c) As soon as practicable, and in any event within (i) fifty (50) days after the end of each Fiscal Quarter other than the fourth Fiscal Quarter in any Fiscal Year and (ii) one hundred (100) days after the end of such fourth Fiscal Quarter, statements of operating income for such Fiscal Quarter and Fiscal Year to date for each of the Income-Producing Projects in the Unencumbered Pool and a complete Project roster, each in such detail as the Administrative Agent may reasonably require;
(d) All written information provided to shareholders of Parent;
(e) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and annual audited consolidated financial statements, including a consolidated balance sheet sheet, income statement and statement of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries the Consolidated Group for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial statements shall be accompanied certified by a report the Parent’s chief financial officer, chief accounting officer or vice president of PricewaterhouseCoopers LLP finance and by KPMG or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite Lenders, which report financial statements shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations exceptions as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention scope of such accountants the audit nor to any other qualification or exception determined by the Requisite Lenders in the course of such examination that would cause them their good faith business judgment to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver be adverse to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation interests of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).Lenders;
(cf) As Upon request by the Administrative Agent, as soon as practicable, and in any event not later than sixty (60) days subsequent to before the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flowConsolidated Group, all in reasonable detail;
(dg) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Parent by independent accountants in connection with the accounts or books of Borrower, Parent or any other member of its Subsidiariesthe Consolidated Group, or any audit of any of them;
(eh) Promptly after the same are available, and in any event within five ten (510) Banking Days days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fi) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other material report or other document that was filed by Borrower, the Consolidated Group with any Governmental Agency;
(gj) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-non exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower the Consolidated Group is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hk) As soon as practicable, and in any event within two five (25) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower the Consolidated Group is taking or proposes propose to take with respect thereto;
(il) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Loan Party that is $250,000 5,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 5,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 5,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries Loan Party or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Loan Party under a contract (that is not a credit agreement or material lease with respect to a claim of lease) in excess of $250,000 5,000,000 or which otherwise may reasonably be expected to result in would constitute a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries the Loan Parties are taking or propose to take with respect thereto;
(m) [Intentionally Omitted.]
(n) Not later than fifty (50) days after the end of each fiscal quarter of the Consolidated Group (including the fourth fiscal quarter in each year), a list (which may be included in the Compliance Certificates) setting forth the following information with respect to each new Subsidiary or Controlled Entity of any of the Loan Parties: (i) the name, structure and ownership of the Subsidiary or Controlled Entity, (ii) a description of the property owned by such Subsidiary or Controlled Entity, and (iii) such other information as the Administrative Agent may reasonably request;
(o) Simultaneously with the delivery of the financial statements referred to in Section 7.1(e) above (if such information is not otherwise included in the financial statements or other information presented to the Lenders pursuant to this Section 7.1), a statement (which may be included in the Compliance Certificates) listing (i) the Projects owned by the Consolidated Group (or in which the Consolidated Group owns an interest) and stating the location thereof, the date acquired and the acquisition cost (with respect to each new Project), (ii) the Indebtedness of the Consolidated Group, which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non recourse, and (iii) the Projects of the Consolidated Group which are Unstabilized Projects and providing a brief summary of the status of such development;
(p) When and as required by Section 2.11, the information regarding each Qualified Unencumbered Project, as more particularly described in Section 2.11;
(q) When and as required by Section 5.17(c), the information regarding the Unencumbered Pool, as more particularly described in Section 5.17(c); and
(jr) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 2 contracts
Samples: Unsecured Credit Agreement (BioMed Realty L P), Unsecured Credit Agreement (BioMed Realty Trust Inc)
Financial and Business Information. So The Company will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with generally accepted accounting principles, and furnish to each holder of Notes that is an Institutional Investor:
7.1.1 Within 90 days after the close of each of its fiscal years, financial statements prepared in accordance with Agreement Accounting Principles on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, accompanied by (a) an audit report, unqualified as to scope, of BDO Xxxxxxx or another nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Holders (provided that so long as the Company is a reporting company, delivery of the Form 10-K filed by the Company with respect to a fiscal year as promptly as practicable but in no event later than 5 Business Days after the filing thereof shall satisfy the requirement for the annual audit report and consolidated financial statements for such fiscal year under this Section) and (b) any Advance remains unpaidmanagement letter prepared by said accountants.
7.1.2 Within 45 days after the close of the first three quarterly periods of each of its fiscal years, for itself and its Subsidiaries, consolidated unaudited balance sheets as at the close of each such period and consolidated statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, all certified as to fairness of presentation, compliance with Agreement Accounting Principles and consistency by its chief financial officer or treasurer (provided that so long as the Company is a reporting company, delivery of the Form 10-Q filed by the Company with respect to a fiscal quarter as promptly as practicable but in no event later than 5 Business Days after the filing thereof shall satisfy the requirement for certified quarterly consolidated financial statements for such fiscal quarter under this Section).
7.1.3 Together with the financial statements required under Sections 7.1.1 and 7.1.2, a compliance certificate signed by its chief financial officer or treasurer showing the calculations necessary to determine compliance with Sections 10.1, 10.3, 10.4, 10.5, 10.12, 10.13, 10.14, 10.15, 10.17, 10.18 and 10.19, an Officer’s Certificate stating that no Default or Event of Default exists, or if any Default or Event of Default exists, stating the nature and status thereof, and a certificate executed and delivered by the chief executive officer or chief financial officer stating that the Company and each of its principal officers are in compliance with all requirements of Section 302 and Section 906 of the Xxxxxxxx-Xxxxx Act of 2002 and all rules and regulations related thereto (provided that so long as the Company is a reporting company, delivery of the certificates required pursuant to Section 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002 as contained in the Form 10-K or Form 10-Q filed by the Company and delivered pursuant to Sections 7.1.1 or 7.1.2 shall satisfy the requirement for such certification of compliance with the Xxxxxxxx-Xxxxx Act under this Section).
7.1.4 [Intentionally Omitted]
7.1.5 As soon as possible and in any event within 10 days after the Company knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer or treasurer of the Company, describing said Reportable Event and the action which the Company proposes to take with respect thereto.
7.1.6 As soon as possible and in any event within 10 days after receipt by the Company thereof, a copy of (a) any notice or claim to the effect that the Company or any of its Subsidiaries is or may be liable to any Person as a result of the release by the Company, any of its Subsidiaries, or any other Obligation remains unpaidPerson of any toxic or hazardous waste or substance into the environment, and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Company or any portion of its Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect.
7.1.7 Promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which the Company or any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (its Subsidiaries files with the written approval SEC, including, without limitation, all certifications and other filings required by Section 302 and Section 906 of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number Xxxxxxxx-Xxxxx Act of copies for 2002 and all of the Lenders of the following:rules and regulations related thereto.
(i) 7.1.8 As soon as practicable, and in any event within fifty (50) 90 days after the end beginning of each Fiscal Quarter ending March 31fiscal year of the Company, June 30 a copy of the plan and September 30 forecast (commencing with the Fiscal Quarter ending June 30, 2005), the consolidating and including a projected consolidated balance sheet sheet, income statement and funds flow statement) of Borrower the Company for such fiscal year.
7.1.9 As soon as possible, and in any event within 3 Business Days (in the case of the Company) and 15 days (in the case of any Guarantor) after the occurrence thereof, a reasonably detailed notification to each holder of Notes and its Subsidiaries as at counsel of any change in the end jurisdiction of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion organization of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such financial statements shall be certified by the president Company or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustmentsany Guarantor.
(i) 7.1.10 As soon as practicable, and in any event within one hundred thirty (10030) days after the end close of each Fiscal Yearcalendar month, the consolidating and consolidated balance sheet Company shall provide the holders of Borrower and its Subsidiaries as at Notes with a Borrowing Base Certificate (containing a certification by an Authorized Officer that the end of Receivables Portfolios included in the Borrowing Base referenced in such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, ifBorrowing Base Certificate are performing, in the opinion aggregate, at a sufficient level to support the amount of such accountantsBorrowing Base), any together with such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections supporting documents (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth without limitation (i) to the extent requested by Fiscal Quarter for the four (4) Fiscal Quarters Required Holders, copies of that Fiscal Year all bills of sale and purchase agreements evidencing the acquisition of Receivables Portfolios included in the Borrowing Base, and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) a copy of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other most recent static pool report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more such Receivables Portfolios as the Required Holders reasonably deem desirable, all certified as being true and correct in excess all material respects by an Authorized Officer of the amount thereof that is fully covered by insurance, (ii) Company). The Company may update the Borrowing Base Certificate more frequently than monthly and the most recently delivered Borrowing Base Certificate shall be the applicable Borrowing Base Certificate for purposes of determining the Borrowing Base at any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; andtime.
(j) 7.1.11 Such other data and information (including non-financial information) as any holder of Notes may from time to time may be reasonably requested by the Administrative Agent or the Requisite Lendersrequest. Information If any information which is required to be delivered pursuant to furnished under this Section 7.1 (is required by law or regulation to be filed by the extent any such documents are included in materials otherwise filed Company with a government body on an earlier date, then the Securities and Exchange Commission) information required hereunder shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that furnished by no later than 5 Business Days after such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsearlier date.
Appears in 2 contracts
Samples: Senior Secured Note Purchase Agreement (Encore Capital Group Inc), Senior Secured Note Purchase Agreement (Encore Capital Group Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement backlog report of Stockholders’ Equity as Borrower and its Subsidiaries, and a report of any changes or other modifications to (and copies of) all fixed-price contracts related to the last day of such Fiscal QuarterViaSat-1 Joint Project, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer of Borrower or his or her designated representative as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event before the commencement of a Pricing Period, a Pricing Certificate for such Pricing Period setting forth a calculation of the Leverage Ratio as of the last day of the Fiscal Quarter immediately prior to such Pricing Period, and providing reasonable detail as to the calculation thereof, which calculations in the case of the fourth Fiscal Quarter in any Fiscal Year shall be based on the preliminary unaudited financial statements of Borrower and its Subsidiaries for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Leverage Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(c) As soon as practicable, and in any event within one hundred (100) 90 days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations exceptions as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention scope of such accountants the audit nor to any other qualification or exception determined by the Requisite Lenders in the course of such examination that would cause them their good faith business judgment to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver be adverse to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation interests of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).Lenders;
(cd) As soon as practicable, and in any event not later than sixty (60) within 120 days subsequent to after the commencement end of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) projections by Fiscal Quarter for the four (4) Fiscal Quarters of that then-current Fiscal Year (the “First Year”) and (ii) on an annual basis by Fiscal Year for each succeeding Fiscal Year thereafter through the Revolving Loan Maturity DateDate (the “Succeeding Years”), including for the First Year, projected consolidated balance sheets, statements of operations and statements of cash flowflow of Borrower and its Subsidiaries, forecast assumptions, and a budget for Capital Expenditures, and, for the Succeeding Years, projected consolidated condensed balance sheets and statements of operations and cash flows of Borrower and its Subsidiaries, forecast assumptions, and a budget for Capital Expenditures, all in reasonable detail;
(de) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) reports by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(ef) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1[Reserved.];
(fg) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower with any Governmental Agency, but excluding such reports or documents as are filed with any Governmental Agency as part of Borrower, ’s ordinary course transactions with any Governmental Agency;
(gh) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hi) As soon as practicable, and in any event within two five (25) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(ij) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 10,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 5,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 5,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 10,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are is taking or propose proposes to take with respect thereto; and
(jk) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, the Collateral Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (, to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed reasonably available to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 2 contracts
Samples: Revolving Loan Agreement (Viasat Inc), Revolving Loan Agreement (Viasat Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any Letter of Credit remains outstanding or any other Obligation remains unpaid, or any portion of any of the Commitments either Commitment remains in force, Borrower and each Co-Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s and the Co- Borrowers’ sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 60 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred (100) 105 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholdersshareholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP one of the four largest public accounting firms in the United States of America or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Lenders in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Lenders. Such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 6.5 and 6.136.6, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(c) As soon as practicable, and in any event not later than sixty (60) within 90 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next two succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected consolidated balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows, of Borrower and its Subsidiaries, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1Section;
(e) Promptly after request by the Administrative Agent or any Lender, copies of the Nevada “Regulation 6.090 Report”;
(f) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, Borrower or any of its Subsidiaries with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking five Business Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking three Business Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto;
(h) Promptly upon a Senior Officer of Borrower or any Co-Borrower becoming aware of any litigation, governmental investigation or proceeding (including any litigation, governmental investigation or proceeding by or subject to decision by any Gaming Board) that is pending (i) against Borrower or any of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect, (ii) in respect of any material Indebtedness of Borrower or any of its Subsidiaries, or (iii) with respect to the Loan Documents, notice of the same;
(i) As soon as practicable, and in any event within 30 days after the end of each calendar month that is not a Fiscal Quarter ending month and 45 days after the end of each calendar month that is a Fiscal Quarter ending month, the consolidated and consolidating balance sheet of Borrower and its Subsidiaries as at the end of such month and the consolidated and consolidating statement of operations for such month and its consolidated statement of cash flows for the portion of the Fiscal Year ended with such month, all in a form and substance consistent with past practices; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required Borrower and each Co-Borrower hereby acknowledge that (a) the Administrative Agent will make available to the Lenders and the Issuing Lender materials and/or information provided by or on behalf of Borrower hereunder (collectively, “Borrower Materials”) by posting Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to Borrower or its securities) (each, a “Public Lender”). Borrower hereby agrees that (w) all Borrower Materials that are to be delivered pursuant made available to this Section 7.1 Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commissionx) by marking Borrower Materials “PUBLIC,” Borrower shall be deemed to have been delivered on authorized the date Administrative Agent, the Issuing Lender and the Lenders to treat such Borrower Materials as either publicly available information or not material information (aalthough it may be sensitive and proprietary) on which with respect to Borrower provides notice or its securities for purposes of United States Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC” are permitted to Lenders that such information has been posted on Borrower’s Internet website at be made available through a portion of the website address listed on the signature page hereof or at another website identified in such notice Platform designated “Public Investor;” and accessible to Lenders without charge, or (bz) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) shall treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsPlatform not designated “Public Investor.”
Appears in 2 contracts
Samples: Loan Agreement (MGM Resorts International), Loan Agreement (MGM Resorts International)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaidunpaid or unperformed, or any portion of any of the Commitments Commitment remains in force, Borrower Parent and the Borrowers shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to and the Lenders, a sufficient number of copies for all of the Lenders of the followingat Parent's and Borrowers' sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such each Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower Parent as fairly presenting the financial condition, results of operations and cash flows of Borrower Parent and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event prior to the penultimate Business Day of February in each Fiscal Year, a Certificate of a Responsible Official setting forth the Total Debt Ratio as of the last day of the fourth Fiscal Quarter of the preceding year, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of Parent and its Subsidiaries for such Fiscal Quarter;
(c) As soon as practicable, and in any event within one hundred (100) 120 days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ shareholders' equity and cash flows, in each case of Borrower Parent and its Subsidiaries for such Fiscal Year as at and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, . Such accountants' report and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report opinion shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s Parent's and Borrowers' financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 Section 6.5 and 6.136.6, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower Parent and the Borrowers in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cd) As soon as practicable, and in any event not later than sixty (60) within 90 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next four succeeding Fiscal Year thereafter through Years, INCLUDING for the Maturity Datefirst such Fiscal Year, projected quarterly consolidated balance sheets, statements statement of operations and statements of cash flow and, for the remaining four Fiscal Years, projected annual consolidated condensed balance sheets and statements of operations and cash flow, of Parent and its Subsidiaries, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended, 1934 and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1Section;
(f) Promptly after the same are available, copies of the Nevada "Regulation 6.090 Report" and "6-A Report" and copies of any written communication to Parent or any of its Subsidiaries from any Gaming Board advising it of a violation of or non-compliance with, any Gaming Law by Parent or any of its Subsidiaries;
(g) Promptly after request by Lender, subject to confidentiality requirements of any Governmental AgencyCreditor, copies of any other report or other document that was filed by Borrower, Parent or any of its Subsidiaries with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking three Business Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking three Business Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is Parent or any of its Subsidiaries are taking or proposes propose to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that of any litigation, governmental investigation or any proceeding, including any litigation or proceeding by or subject to decision by any Gaming Board) pending (i) any Person has commenced a legal proceeding with respect to a claim against Borrower Parent or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may could reasonably be expected to result in have a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take (ii) with respect theretoto any material Indebtedness of Parent or any of its Subsidiaries, or (iii) with respect to the Loan Documents, notice of the existence of the same; and
(j) Such other data and information as from time to time may be reasonably requested by any Creditor through the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsAgent.
Appears in 2 contracts
Samples: 364 Day Loan Agreement (Harrahs Entertainment Inc), 364 Day Loan Agreement (Harrahs Entertainment Inc)
Financial and Business Information. So long as any Advance remains unpaid, unpaid or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and quarterly unaudited consolidated financial statements, including a consolidated balance sheet sheet, income statement and statement of Borrower and its Subsidiaries cash flows of the Consolidated Group as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or Parent’s chief financial officer of Borrower or chief accounting officer as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries the Consolidated Group in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-year end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within (i) fifty (50) days after the end of each Fiscal Quarter other than the fourth Fiscal Quarter of any Fiscal Year and (ii) one hundred (100) days after the end of each such fourth Fiscal YearQuarter, a Compliance Certificate as of the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end last day of such Fiscal Year and the consolidating and consolidated statements of incomeQuarter, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in providing reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory detail as to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).calculation thereof;
(c) As soon as practicable, and in any event not later than sixty within (60i) fifty (50) days subsequent after the end of each Fiscal Quarter other than the fourth Fiscal Quarter of any Fiscal Year and (ii) one hundred (100) days after the end of such fourth Fiscal Quarter, statements of operating income for such Fiscal Quarter and Fiscal Year to date for the Subject Property and a complete Project roster, each in such detail as the Administrative Agent may reasonably require;
(d) All written information provided to shareholders of Parent;
(e) Upon request by the Administrative Agent, as soon as practicable, and in any event before the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flowConsolidated Group, all in reasonable detail;
(df) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Parent by independent accountants in connection with the accounts or books of Borrower, Parent or any other member of its Subsidiariesthe Consolidated Group, or any audit of any of them;
(eg) Promptly after the same are available, and in any event within five ten (510) Banking Days days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.115.1;
(fh) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other material report or other document that was filed by Borrower, the Consolidated Group with any Governmental Agency;
(gi) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-non exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower the Consolidated Group is taking or proposes propose to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hj) As soon as practicable, and in any event within two five (25) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower the Consolidated Group is taking or proposes propose to take with respect thereto;
(ik) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Loan Party that is $250,000 5,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 5,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 5,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries Loan Party or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Loan Party under a contract (that is not a credit agreement or material lease with respect to a claim of lease) in excess of $250,000 5,000,000 or which otherwise may reasonably be expected to result in would constitute a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries the Loan Parties are taking or propose to take with respect thereto;
(l) [Intentionally omitted];
(m) Not later than fifty (50) days after the end of each fiscal quarter of the Consolidated Group (including the fourth fiscal quarter in each year), a list (which may be included in the Compliance Certificates) setting forth the following information with respect to each new Subsidiary or Controlled Entity of any of the Loan Parties: (i) the name, structure and ownership of the Subsidiary or Controlled Entity, (ii) a description of the property owned by such Subsidiary or Controlled Entity, and (iii) such other information as the Administrative Agent may reasonably request;
(n) Simultaneously with the delivery of the financial statements to Administrative Agent (if such information is not otherwise included in the financial statements or other information presented to the Lenders pursuant to this Section 15.1), a statement (which may be included in the Compliance Certificates) listing (i) the Projects owned by the Consolidated Group (or in which the Consolidated Group owns an interest) and stating the location thereof, the date acquired and the acquisition cost (with respect to each new Project), (ii) the Indebtedness of the Consolidated Group, which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non recourse, and (iii) the Projects of the Consolidated Group which are Unstabilized Projects and providing a brief summary of the status of such development; and
(jo) (i) Commencing thirty (30) days following the Substantial Completion of the Construction of the Improvements on the Subject Property, and fifteen (15) days following the end of each calendar month thereafter, Borrower shall deliver to Administrative Agent: a current rent roll and a summary of all leasing activity then taking place with respect to the Subject Property, particularly describing the status of all pending lease negotiations, if any, and (ii) after Substantial Completion of the Construction of the Improvements, monthly unaudited operating cash flow statements for the Subject Property, certified as true, complete and correct by Borrower showing actual sources and uses of cash during the preceding month.
(p) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Secured Acquisition and Construction Loan Agreement (BioMed Realty Trust Inc)
Financial and Business Information. So long as any portion of any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of and the Lenders copies of the following:
(ia) As soon as practicable, and in any event within fifty Within thirty (5030) days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (calendar month commencing with the calendar month ending June 30, 2006 (other than the calendar months ending each Fiscal Quarter, for which the period shall be forty-five (45) days, and excluding the Fiscal Quarter ending June 30December 31, 2005for which the period shall be sixty (60) days), the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter calendar month and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quartercalendar month, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quartercalendar month, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
(ib) As soon as practicable, and in any event within one hundred Within ninety (10090) days after the end of each Fiscal YearYear commencing with the Fiscal Year ending December 31, 2006, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptionsexceptions other than qualifications, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s exceptions or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant disclaimers relating to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices)internal controls.
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent Prior to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity DateYear, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Within five (5) Banking Days after distribution to Borrower’s shareholders, copies of all financial statements and reports that Borrower sends to its shareholders generally;
(e) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(ef) Promptly after the same are available, and in any event within Within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fg) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, Borrower with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance or Letter of Credit remains unpaid, or any other non-contingent Obligation remains unpaidunpaid or unperformed, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) Lenders otherwise consentsconsent, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) days after the end of each of the first three Fiscal Quarter ending March 31, June 30 and September 30 Quarters in each Fiscal Year (commencing with the first Fiscal Quarter ending June 30, 2005of 2003), the consolidated and consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Quarter and the consolidated and consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such detail and setting forth in each case in comparative form the corresponding consolidated and consolidating current Fiscal Quarter and year-to-date figures for the corresponding period in the preceding Fiscal Year and the consolidated figures for the corresponding period in the applicable projections. Such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting in all material respects the financial condition, results of operations and cash flows of Borrower Borrower, Parent and its their collective Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred ninety-five (10095) days after the end of each Fiscal Year, the audited consolidated and unaudited consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Year and the audited consolidated and unaudited consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower Parent and its Subsidiaries for such Fiscal Year, all in reasonable detaildetail and setting forth in each case in comparative form the corresponding consolidated current Fiscal Quarter and year-to-date figures for the corresponding period in the preceding Fiscal Year and the consolidated figures for corresponding period in the applicable projections. Such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting in all material respects the financial condition, results of operations and cash flows of Borrower, Parent and their collective Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers Deloitte & Touche LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite LendersAdministrative Agent, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(c) As soon as practicable, and in any event not later than sixty thirty (6030) days subsequent to after the commencement of each Fiscal Year, a budget copy of the projected consolidated financial statements of Borrower, Parent and projection of Borrower and its their collective Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual a quarterly basis for each succeeding Fiscal Year thereafter through the Maturity DateDate together with narrative assumptions, including, in each case, projected consolidated balance sheets, statements of operations income and retained earnings and statements of cash flowflow of Borrower, Parent and their collective Subsidiaries, all in reasonable detaildetail and in any event to include (A) projected Capital Expenditures and (B) annual Fiscal Year projections of Borrower’s compliance with each of the covenants set forth in Sections 6.12, 6.13 6.14 and 6.15 of this Agreement;
(d) Promptly after request receipt by the Administrative Agent Borrower or any LenderParent, copies of any detailed audit reports, management letters or recommendations submitted to Borrower or Parent (or its their respective board of directors) by independent accountants in connection with the accounts or books of Borrower, Parent or any of its their collective Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower Borrower, Parent or any of its their collective Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower Borrower, Parent or any of its their collective Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;7.1 which reports or filings may be sent via electronic mail or, so long as acceptable to the Agent and the Lenders, Borrower may send a notice to the Agent and the Lenders that such reports or filings have been made with the Securities and Exchange Commission.
(f) Promptly after the reasonable request by Lender, subject to confidentiality requirements of any Governmental AgencyLender through the Administrative Agent, copies of any other report or other document that was filed by Borrower, Parent or any of their collective Subsidiaries, with any Governmental Agency;
(g) Promptly upon a Senior Officer of BorrowerBorrower or Parent, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower Borrower, Parent or any of its their Subsidiaries in which the claimant alleges damages in an amount that is $250,000 2,500,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 500,000 or more or any lessor under a lease involving aggregate rent of $250,000 500,000 or more has asserted a default thereunder on the part of Borrower Borrower, Parent or any of its their Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower Borrower, Parent or any of its their Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 500,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower Borrower, Parent and/or its their applicable Subsidiaries are taking or propose to take with respect thereto; and;
(j) Promptly after receipt, copies of any notice that the Debt Rating of Parent has been established or that a new or different Debt Rating has been assigned to Parent;
(i) As soon as practicable, and in any event not less than 5 days prior to the proposed effective date thereof, written notice of any proposed amendment, modification or waiver of the terms and provisions of any of the Material Contracts, which amendment, modification or waiver could reasonably be expected to be adverse to the Lenders in any material respect and (ii) as soon as practicable, and in any event not less than 10 days prior to the proposed effective date thereof, written notice of any proposed amendment, modification or waiver of the terms and provisions of any of the Material Governing Documents.
(l) As soon as practicable, concurrent with the filing thereof with the Securities and Exchange Commission and in any event within ninety days after the Closing Date, the audited balance sheet, statements of income, operations, stockholders’ equity and cash flows for the Acquired Boat U.S. Operations prepared by Ernst & Young LLP for the fiscal year ending December 31, 2002. Such financial statements shall be prepared in accordance with GAAP and such financial statements shall be accompanied by a report of Ernst & Young LLP, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions.
(m) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter in each Fiscal Year (commencing with the first Fiscal Quarter of 2003), a detailed report of store/location information and operating data of Parent and its Subsidiaries on a year-to-date basis, including, without limitation, square footage, sales, gross profit and contribution, in form and substance reasonably satisfactory to the Lenders.
(n) The Leasehold Analysis Report as and when required under Section 5.14(a)(i).
(o) Each quarterly inventory report as and when required under Section 5.14(a)(ii)(1)(A).
(p) The copies of leases as and when required under Section 5.14(c).
(q) As soon as practicable, evidence that West Marine FSC, Inc., a Barbados corporation, has been dissolved.
(r) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Credit Agreement (West Marine Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, shall deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(a) Financial Statements and Collateral Reports: such data, reports, statements and information, financial or otherwise, as Agent may reasonably request, including, without limitation:
(i) As soon as practicable, and in any event within fifty ninety (5090) days after the end of each Fiscal Quarter ending March 31fiscal year of Borrower, June 30 financial statements of Borrower for such year on a consolidated and September 30 (commencing with consolidating basis, eliminating inter-company transactions, including the Fiscal Quarter ending June 30, 2005), the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter fiscal year and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity cash flows and income statement for such fiscal year, setting forth in the consolidated statements in comparative form, the corresponding figures as at the end of and for the last day of such Fiscal Quarterprevious fiscal year, all in reasonable detail, including all supporting schedules and if requested management letters, and audited and certified on an unqualified basis by independent
(ii) within twenty one (21) days after each calendar month for the initial six months of the term herein and within fifteen (15) days of the end of each calendar month thereafter, Borrower's billed Accounts receivable aging report and listings of Unbilled Accounts by customer and contract, accounts payable aging report, and such financial statements shall be certified by the president or chief financial officer of Borrower other reports as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustmentsAgent deems reasonably necessary.
(iiii) As soon as practicable, and in any event within one hundred thirty (10030) days after the end of each Fiscal Yearcalendar month, the internally prepared consolidated and consolidating financial statements for Borrower, including balance sheet, income statement and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently appliedwithout footnotes and subject to normal year end adjustments, all in form and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and substance reasonably satisfactory to the Requisite LendersAgent.
(iv) Borrowing Base Certificate together with reports of billxxxx, which report xxllections, credit adjustments, and all other information pertaining to Accounts, billed accounts, revenue recognition by customer and contract and all information pertaining to Unbilled Accounts Receivable shall be submitted to Agent in conjunction with each Advance but in no event less than weekly, all in a form satisfactory to Agent.
(v) at least 30 days prior to the end of each fiscal year, annual consolidated and consolidating projections of profit and loss, cash flows and balance sheets and availability prepared in accordance with generally accepted auditing standards as at such dateGAAP, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by prepared on a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices)monthly basis.
(cvi) As soon such other collateral and financial reports and information as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;Agent may reasonably request.
(db) Promptly after request by the Administrative Agent or any Lender, copies Notice of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board Event of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly Default - promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or an Event of DefaultDefault under this Agreement, telephonic notice specifying or which with the nature and period passage of existence thereof, and, no more than two (2) Banking Days after such telephonic time or the giving of notice, or both, could reasonably be expected to become an Event of Default hereunder, a written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or (and proposes to take take) with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Loan and Security Agreement (Ecc International Corp)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation (other than indemnity obligations for which no claim has been made) remains unpaidunpaid or unperformed, or any portion of any of the Commitments Commitment remains in force, the Borrower shall, unless the Administrative Agent (with the written approval of the Requisite LendersMajority Banks) otherwise consentsconsents in writing, deliver to the Banks and the Administrative Agent, at the Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet sheets of the Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and Quarter, (ii) consolidated statements of incomeincome and (iii) consolidated statements of cash flow, operations in each case described in clauses (ii) and cash flows (iii) of this Section 7.1(a), of the Borrower and its Subsidiaries for such Fiscal Quarter, Quarter and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by a Senior Officer of the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows changes in financial position of the Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than any requirement for footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred (100) 90 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet sheets of the Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and Year, (ii) consolidated statements of income, operations, stockholders’ equity income of the Borrower and its Subsidiaries for such Fiscal Year and (iii) consolidated statements of cash flows, in each case flow of the Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently appliedGenerally Accepted Accounting Principles, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP Ernst & Young or other independent public accountants of recognized national standing selected by Borrower and reasonably satisfactory to the Requisite LendersBorrower, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of the Borrower or any of its Subsidiariesgenerally, and copies of all annual, regular, periodic periodic, current and special reports and registration statements which the Borrower or any a Subsidiary of its Subsidiaries the Borrower may file or be required to file with the Securities and Exchange Commission under Section Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fd) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming awarePromptly, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Business Days after a Senior Officer of the Borrower becomes aware obtains actual knowledge of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action the Borrower or any of its Subsidiaries is taking or proposes to take with respect thereto;
(ie) Promptly upon a Senior Officer of Borrower becoming aware that of the occurrence of any ERISA Event defined in clauses (i) any Person has commenced a legal proceeding with respect through (vii) or (xi) of the definition thereof involving Title IV of ERISA that could reasonably be expected to a claim against result in material liability to the Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract ERISA Event that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may could reasonably be expected to result in a Material Adverse Effect, a written notice describing specifying the pertinent facts relating thereto and nature thereof, what action the Borrower and/or or any of its applicable Subsidiaries are ERISA Affiliates has taken, is taking or propose proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto;
(f) With reasonable promptness, copies of (a) each Schedule SB (Actuarial Information) to the annual report, if any (Form 5500 Series), filed by the Borrower or any of its Current ERISA Affiliates with the Internal Revenue Service with respect to each Pension Plan following the Administrative Agent’s request; (b) all notices received by the Borrower or any of its Current ERISA Affiliates from the sponsor of a Multiemployer Plan to which a Current ERISA Affiliate contributes concerning an ERISA Event defined in clauses (i) through (vii) or (xi) of the definition thereof following the receipt thereof; and (c) such other documents or governmental reports or filings relating to any Employee Benefit Plan as the Administrative Agent shall reasonably request; and
(jg) Such other data and material information related to the Borrower’s ability to meet its Obligations hereunder as from time to time may be reasonably requested by the Administrative Agent or the Requisite LendersMajority Banks. Information Documents required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with or furnished to the Securities and Exchange Commission) Commission and available to the public may be delivered electronically and if so delivered), shall be deemed to have been delivered for all purposes of this Agreement on the date (ai) on which the Borrower posts such documents, or provides notice to Lenders that such information has been posted a link thereto on the Borrower’s website on the Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, Schedule 11.7; or (bii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website (including, without limitation, the Platform; provided that (i) Company shall notify XXXXX System), if any, to which each Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent). The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender (by telecopier Bank shall be solely responsible for requesting delivery to it or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) maintaining its copies of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any Letter of Credit remains outstanding or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty 30 days after the end of each calendar month, a monthly revenue report certified by a Senior Officer of Borrower with a breakout of gaming categories, occupancy percentage, average daily room rate and Gaming EBITDAM for that calendar month (50including both revenues for that month and related year-to-date revenues), together with a narrative description of the results of operations during that calendar month;
(b) As soon as practicable, and in any event within 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with including the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and consolidated balance sheet of Borrower and its Subsidiaries the Casino Operations as at the end of such Fiscal Quarter and Quarter, the consolidating and consolidated statements statement of income, operations and cash flows for the Casino Operations as at the end such Fiscal Quarter, and the Casino Operations statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such and with comparisons to the combined results of operations, on a pro forma basis for the same Fiscal Quarter in the prior year. Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower as fairly presenting in all material respects the financial condition, results of operations and cash flows of Borrower and its Subsidiaries the Casino Operations in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ic) As soon as practicable, and in any event within one hundred (100) 90 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries the Casino Operations as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case flows of Borrower and its Subsidiaries the Casino Operations for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP one of the four largest public accounting firms in the United States of America or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Lenders in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Lenders. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.136.11 through 6.14, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cd) As soon as practicable, and in any event not later than sixty within 180 days after the end of each fiscal year of Borrower, the audited financial statements of Borrower in respect of its consolidated governmental operations;
(60e) As soon as practicable, and in any event within 45 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) for the Casino Operations by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next two succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected condensed balance sheets and statements of operations and cash flows, of the Casino Operations, all in reasonable detail;
(df) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (the Tribal Council, the Development Board or its board of directors) the Business Board by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiariesthe Casino Operations, or any audit of any of themthe Casino Operations;
(eg) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other material report or communication with respect to Casino Operations sent to the stockholders enrolled members of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1Section;
(fh) Not later than the fifteenth day of each calendar month, such information as may be required for the completion of the monthly Construction Progress Report;
(i) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, Borrower with any Governmental AgencyAgency (other than routine applications and reports filed by Borrower with any Gaming Board);
(gj) Promptly upon a Senior Officer of Borrower, becoming awareAs soon as practicable, and in any event within five (5) Banking ten Business Days after becoming aware, a Senior Officer of Borrower becomes aware of the occurrence of any material (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving in connection with any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking five Business Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hk) As soon as practicable, and in any event within two (2) Banking Business Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Business Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Loan Agreement (Station Casinos Inc)
Financial and Business Information. So long as any Advance remains unpaid, unpaid or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and quarterly unaudited consolidated financial statements, including a consolidated balance sheet sheet, income statement and statement of Borrower and its Subsidiaries cash flows of the Consolidated Group as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or Parent’s chief financial officer, chief accounting officer or vice president of Borrower finance as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries the Consolidated Group in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-year end accruals and audit adjustments.;
(b) As soon as practicable, and in any event within (i) fifty (50) days after the end of each Fiscal Quarter other than the fourth Fiscal Quarter in any Fiscal Year and (ii) one hundred (100) days after the end of such fourth Fiscal Quarter, a Compliance Certificate as of the last day of such Fiscal Quarter, providing reasonable detail as to the calculation thereof;
(c) As soon as practicable, and in any event within (i) fifty (50) days after the end of each Fiscal Quarter other than the fourth Fiscal Quarter in any Fiscal Year and (ii) one hundred (100) days after the end of such fourth Fiscal Quarter, statements of operating income for such Fiscal Quarter and Fiscal Year to date for each of the Subject Properties and a complete Project roster, each in such detail as the Administrative Agent may reasonably require;
(d) All written information provided to shareholders of Parent;
(e) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and annual audited consolidated financial statements, including a consolidated balance sheet sheet, income statement and statement of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries the Consolidated Group for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial statements shall be accompanied certified by a report the Parent’s chief financial officer, chief accounting officer or vice president of PricewaterhouseCoopers LLP finance and by KPMG or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite Lenders, which report financial statements shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations exceptions as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention scope of such accountants the audit nor to any other qualification or exception determined by the Requisite Lenders in the course of such examination that would cause them their good faith business judgment to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver be adverse to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation interests of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).Lenders;
(cf) As Upon request by the Administrative Agent, as soon as practicable, and in any event not later than sixty (60) days subsequent to before the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flowConsolidated Group, all in reasonable detail;
(dg) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Parent by independent accountants in connection with the accounts or books of Borrower, Parent or any other member of its Subsidiariesthe Consolidated Group, or any audit of any of them;
(eh) Promptly after the same are available, and in any event within five ten (510) Banking Days days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fi) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other material report or other document that was filed by Borrower, the Consolidated Group with any Governmental Agency;
(gj) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-non exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower the Consolidated Group is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hk) As soon as practicable, and in any event within two five (25) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower the Consolidated Group is taking or proposes propose to take with respect thereto;
(il) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Loan Party that is $250,000 5,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 5,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 5,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries Loan Party or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Loan Party under a contract (that is not a credit agreement or material lease with respect to a claim of lease) in excess of $250,000 5,000,000 or which otherwise may reasonably be expected to result in would constitute a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries the Loan Parties are taking or propose to take with respect thereto;
(m) [Intentionally Omitted.]
(n) Not later than fifty (50) days after the end of each fiscal quarter of the Consolidated Group (including the fourth fiscal quarter in each year), a list (which may be included in the Compliance Certificates) setting forth the following information with respect to each new Subsidiary or Controlled Entity of any of the Loan Parties: (i) the name, structure and ownership of the Subsidiary or Controlled Entity, (ii) a description of the property owned by such Subsidiary or Controlled Entity, and (iii) such other information as the Administrative Agent may reasonably request;
(o) Simultaneously with the delivery of the financial statements referred to in Section 7.1(e) above (if such information is not otherwise included in the financial statements or other information presented to the Lenders pursuant to this Section 7.1), a statement (which may be included in the Compliance Certificates) listing (i) the Projects owned by the Consolidated Group (or in which the Consolidated Group owns an interest) and stating the location thereof, the date acquired and in the case of any Project not identified on prior such statements, the acquisition cost, (ii) the Indebtedness of the Consolidated Group, which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non recourse, and (iii) the Projects of the Consolidated Group which are Unstabilized Projects and providing a brief summary of the status of such development; and
(jp) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Secured Term Loan Agreement (BioMed Realty Trust Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(i) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30, 2005), the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ ' Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
(i) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s 's or its Subsidiaries’ ' applicable process of management of accounts, (ii) such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “"management letter” " prepared by such accountants in conjunction with preparation of the foregoing report and and, (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g7.1 (g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaidunpaid or unperformed, or any portion of any of the Aggregate Commitments remains in force, Borrower Parent and the Borrowers shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to and the Lenders, a sufficient number of copies for all of the Lenders of the followingat Parent’s and Borrowers’ sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such each Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, together with the similar financial statements (iior supporting schedules reasonably acceptable to the Administrative Agent) such setting out the financial position and results of operations of any Unrestricted Subsidiaries. Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower Parent as fairly presenting the financial condition, results of operations and cash flows of Borrower Parent and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event prior to the penultimate Business Day of February in each Fiscal Year, a Certificate of a Responsible Official setting forth the Total Debt Ratio as of the last day of the fourth Fiscal Quarter of the preceding year, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of Parent and its Subsidiaries for such Fiscal Quarter (after elimination of all relevant items relating to Unrestricted Subsidiaries);
(c) As soon as practicable, and in any event within one hundred (100) 120 days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholdersshareholders’ equity and cash flows, in each case of Borrower Parent and its Subsidiaries for such Fiscal Year as at and for the Fiscal Year, all in reasonable detail, together with the similar financial statements (or supporting schedules reasonably acceptable to the Administrative Agent) setting out the financial position and results of operations of any Unrestricted Subsidiaries. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such . Such accountants’ report and opinion shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed BorrowerParent’s and Borrowers’ financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 Section 6.5 and 6.136.6, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower Parent and the Borrowers in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cd) As soon as practicable, and in any event not later than sixty (60) within 90 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next four succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected quarterly consolidated balance sheets, statements statement of operations and statements of cash flow and, for the remaining four Fiscal Years, projected annual consolidated condensed balance sheets and statements of operations and cash flow, of Parent and the Restricted Subsidiaries, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended, 1934 and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after the same are available, copies of the Nevada “Regulation 6.090 Report” and “6-A Report” and copies of any written communication to Parent or any of its Subsidiaries from any Gaming Board advising it of a violation of or non-compliance with, any Gaming Law by Parent or any of its Subsidiaries;
(g) Promptly after request by Lender, subject to confidentiality requirements of any Governmental AgencyCreditor, copies of any other report or other document that was filed by Borrower, Parent or any of its Subsidiaries with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking three Business Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking three Business Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is Parent or any of the Restricted Subsidiaries are taking or proposes propose to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that of any litigation, governmental investigation or any proceeding (including any litigation or proceeding by or subject to decision by any Gaming Board) pending:
(i) any Person has commenced a legal proceeding with respect to a claim against Borrower Parent or any of its the Restricted Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may could reasonably be expected to result in have a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take ;
(ii) with respect theretoto any material Indebtedness of Parent or any of the Restricted Subsidiaries; or
(iii) with respect to the Loan Documents, notice of the existence of the same;
(j) Promptly after the Borrowers have notified the Administrative Agent of any intention by the Borrowers to treat the Loans and/or Letters of Credit as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4) a duly completed copy of IRS Form 8886 or any successor form; and
(jk) Such other data and information as from time to time may be reasonably requested by any Creditor through the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsAgent.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any Letter of Credit remains outstanding, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, Lenders (and the Administrative Agent agrees to so distribute such materials to the Lenders promptly after receipt thereof) a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter ending March 31(other than the fourth Fiscal Quarter in any Fiscal Year), June 30 and September 30 (commencing a copy of Borrower’s 10-Q for such Fiscal Quarter as filed with the Fiscal Quarter ending June 30Securities and Exchange Commission, 2005), the consolidating and which will include a consolidated balance sheet sheet, income statement and statement of Borrower and its Subsidiaries cash flows of the Consolidated Group as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such financial statements and shall be certified by the president or Parent’s chief executive officer, chief financial officer of Borrower or chief accounting officer as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries the Consolidated Group in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-year end accruals and audit adjustments.;
(b) As soon as practicable, and in any event within (i) fifty (50) days after the end of each Fiscal Quarter other than the fourth Fiscal Quarter in any Fiscal Year and (ii) one hundred (100) days after the end of such fourth Fiscal Quarter, a Compliance Certificate as of the last day of such Fiscal Quarter, providing reasonable detail as to the calculation thereof;
(c) As soon as practicable, and in any event within (i) fifty (50) days after the end of each Fiscal Quarter other than the fourth Fiscal Quarter in any Fiscal Year and (ii) one hundred (100) days after the end of such fourth Fiscal Quarter, a statement of Funds From Operations in such detail as the Administrative Agent may reasonably require;
(d) All written information provided to shareholders of Parent;
(e) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, a copy of Borrower’s Form 10-K for such Fiscal Quarter as required by and filed with the consolidating Securities and Exchange Commission which will include a consolidated balance sheet sheet, income statement and statement of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries the Consolidated Group for such Fiscal Year, all in reasonable detail. Such financial statements , and shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied certified by a report of PricewaterhouseCoopers LLP KPMG or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations exceptions as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention scope of such accountants the audit nor to any other qualification or exception determined by the Requisite Lenders in the course of such examination that would cause them their good faith business judgment to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver be adverse to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation interests of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).Lenders;
(cf) As Upon request by the Administrative Agent, as soon as practicable, and in any event not later than sixty (60) days subsequent to before the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flowConsolidated Group, all in reasonable detail;
(dg) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Parent by independent accountants in connection with the accounts or books of Borrower, Parent or any other member of its Subsidiariesthe Consolidated Group, or any audit of any of them;
(eh) Promptly after the same are available, and in any event within five ten (510) Banking Days days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fi) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other material report or other document that was filed by Borrower, the Consolidated Group with any Governmental Agency;
(gj) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-non exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower the Consolidated Group is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hk) As soon as practicable, and in any event within two ten (210) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two ten (210) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower the Consolidated Group is taking or proposes propose to take with respect thereto;
(il) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Guarantor that is $250,000 10,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 50,000,000 or more or any lessor under a lease involving aggregate annual rent of $250,000 10,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries Guarantor or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Guarantor under a contract (that is not a credit agreement or material lease with respect to a claim of lease) in excess of $250,000 20,000,000 or which otherwise may reasonably be expected to result in would constitute a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action the Borrower and/or its applicable Subsidiaries and Guarantor are taking or propose to take with respect thereto;
(m) Promptly upon a Senior Officer becoming aware of, and in any event within five (5) Banking Days after the occurrence of, any change in a Credit Rating of the Parent, a written notice describing such change.
(n) Not later than fifty (50) days after the end of each fiscal quarter of the Consolidated Group (including the fourth fiscal quarter in each year), a list (which may be included in the Compliance Certificates) setting forth the following information with respect to each new Subsidiary or Controlled Entity of the Borrower and Guarantor: (i) the name, form of legal entity, the identity of any member of the Consolidated Group that is a record owner, and with respect to Subsidiaries of Parent, the jurisdiction of organization of the Subsidiary or Controlled Entity, (ii) a description of the property owned by such Subsidiary or Controlled Entity, and (iii) such other information as the Administrative Agent may reasonably request. Any such list (including if contained in a Compliance Certificate) provided to the Administrative Agent shall be deemed to automatically amend Schedule 4.4 hereof;
(o) Simultaneously with the delivery of the financial statements referred to in Section 7.1(e) above (if such information is not otherwise included in the financial statements or other information presented to the Lenders pursuant to this Section 7.1), a statement (which may be included in the Compliance Certificates) listing (i) the Projects owned by the Consolidated Group (or in which the Consolidated Group owns an interest) and stating the location thereof, the date acquired and the GAAP Cost Basis (with respect to each new Project), (ii) the Consolidated Outstanding Indebtedness of the Consolidated Group, which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or Non-Recourse Indebtedness, and (iii) the Projects of the Consolidated Group which are Unstabilized Projects and providing a brief summary of the status of such Unstabilized Projects; and
(jp) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaidunpaid or unperformed, or any portion of any of the Aggregate Commitments remains in force, Borrower Parent and the Borrowers shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to and the Lenders, a sufficient number of copies for all of the Lenders of the followingat Parent's and Borrowers' sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such each Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower Parent as fairly presenting the financial condition, results of operations and cash flows of Borrower Parent and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event prior to the penultimate Business Day of February in each Fiscal Year, a Certificate of a Responsible Official setting forth the Total Debt Ratio as of the last day of the fourth Fiscal Quarter of the preceding year, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of Parent and its Subsidiaries for such Fiscal Quarter;
(c) As soon as practicable, and in any event within one hundred (100) 120 days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ shareholders' equity and cash flows, in each case of Borrower Parent and its Subsidiaries for such Fiscal Year as at and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, . Such accountants' report and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report opinion shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s Parent's and Borrowers' financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 Section 6.5 and 6.136.6, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower Parent and the Borrowers in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cd) As soon as practicable, and in any event not later than sixty (60) within 90 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next four succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected quarterly consolidated balance sheets, statements statement of operations and statements of cash flow and, for the remaining four Fiscal Years, projected annual consolidated condensed balance sheets and statements of operations and cash flow, of Parent and its Subsidiaries, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended, 1934 and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after the same are available, copies of the Nevada "Regulation 6.090 Report" and "6-A Report" and copies of any written communication to Parent or any of its Subsidiaries from any Gaming Board advising it of a violation of or non-compliance with, any Gaming Law by Parent or any of its Subsidiaries;
(g) Promptly after request by Lender, subject to confidentiality requirements of any Governmental AgencyCreditor, copies of any other report or other document that was filed by Borrower, Parent or any of its Subsidiaries with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking three Business Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking three Business Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower Parent or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.;
Appears in 1 contract
Financial and Business Information. So long as any ---------------------------------- Advance remains unpaid, or any other non-contingent Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) Lenders otherwise consentsconsent, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) days after the end of each of the first three Fiscal Quarter ending March 31, June 30 and September 30 Quarters in each Fiscal Year (commencing with the first Fiscal Quarter ending June 30, 2005of 2002), the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ ' Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower Borrower, Parent and their collective Subsidiaries in accordance with GAAP (other ----- than footnote disclosures), consistently applied, as at such date and for ---- such periods, subject only to normal year-end accruals and audit adjustments.
(b) As soon as practicable, and in any event within ninety-five (95) days after the end of each Fiscal Year, the consolidated balance sheet of Parent and its Subsidiaries as at the end of such Fiscal Year and the consolidated statements of income, operations, stockholders' equity and cash flows, in each case of Parent and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower, Parent and their collective Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently ----- ---- applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
(i) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers Deloitte & Touche LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite LendersAdministrative Agent, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty thirty (6030) days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower Borrower, Parent and its their collective Subsidiaries setting forth (i) by Fiscal Quarter on a monthly basis for the four twelve (412) Fiscal Quarters months of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request receipt by the Administrative Agent Borrower or any LenderParent, copies of any detailed audit reports, management letters or recommendations submitted to Borrower or Parent (or its their respective board of directors) by independent accountants in connection with the accounts or books of Borrower, Parent or any of its their collective Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower Borrower, Parent or any of its their collective Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower Borrower, Parent or any of its their collective Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;; ------------
(f) Promptly after the reasonable request by Lender, subject to confidentiality requirements of any Governmental AgencyLender through the Administrative Agent, copies of any other report or other document that was filed by BorrowerBorrower or Parent, with any Governmental Agency;
(g) Promptly upon a Senior Officer of BorrowerBorrower or Parent, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events --------- as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Credit Agreement (West Marine Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaidunpaid or unperformed, or any portion of any of the Commitments Commitment remains in force, Borrower Parent and the Borrowers shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to and the Lenders, a sufficient number of copies for all of the Lenders of the followingat Parent's and Borrowers' sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such each Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower Parent as fairly presenting the financial condition, results of operations and cash flows of Borrower Parent and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event prior to the penultimate Business Day of February in each Fiscal Year, a Certificate of a Responsible Official setting forth the Total Debt Ratio as of the last day of the fourth Fiscal Quarter of the preceding year, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of Parent and its Subsidiaries for such Fiscal Quarter;
(c) As soon as practicable, and in any event within one hundred (100) 120 days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ shareholders' equity and cash flows, in each case of Borrower Parent and its Subsidiaries for such Fiscal Year as at and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, . Such accountants' report and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report opinion shall be accompanied by a certificate stating that, in making the examination pursuant to -52- generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s Parent's and Borrowers' financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 Section 6.5 and 6.136.6, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower Parent and the Borrowers in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cd) As soon as practicable, and in any event not later than sixty (60) within 90 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next four succeeding Fiscal Year thereafter through Years, INCLUDING for the Maturity Datefirst such Fiscal Year, projected quarterly consolidated balance sheets, statements statement of operations and statements of cash flow and, for the remaining four Fiscal Years, projected annual consolidated condensed balance sheets and statements of operations and cash flow, of Parent and its Subsidiaries, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended, 1934 and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1Section;
(f) Promptly after the same are available, copies of the Nevada "Regulation 6.090 Report" and "6-A Report" and copies of any written communication to Parent or any of its Subsidiaries from any Gaming Board advising it of a violation of or non-compliance with, any Gaming Law by Parent or any of its Subsidiaries;
(g) Promptly after request by Lender, subject to confidentiality requirements of any Governmental AgencyCreditor, copies of any other report or other document that was filed by Borrower, Parent or any of its Subsidiaries with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking three Business Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking three Business Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is Parent or any of its Subsidiaries are taking or proposes propose to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that of any litigation, governmental investigation or any proceeding, including any litigation or proceeding by or subject to decision by any Gaming Board) pending (i) any Person has commenced a legal proceeding with respect to a claim against Borrower Parent or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may could reasonably be expected to result in have a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take (ii) with respect theretoto any material Indebtedness of Parent or any of its Subsidiaries, or (iii) with respect to the Loan Documents, notice of the existence of the same; and
(j) Such other data and information as from time to time may be reasonably requested by any Creditor through the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsAgent.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaidunpaid or unperformed, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite LendersBanks) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of Banks the following:
(ia) As soon as reasonably practicable, and in any event within fifty (50) 30 days after the end of each Fiscal Quarter ending March 31Month, June 30 the consolidated balance sheet and September 30 statements of operations and cash flow of Borrower and its Subsidiaries for such Fiscal Month, and the portion of the Fiscal Year ended with such Fiscal Month, in reasonable detail;
(commencing b) Concurrently with the Fiscal Quarter ending June 30, 2005financial statements described in Section 7.1(a), a Borrowing Base Certificate and written reports of accounts receivable, inventory, equipment and accounts payable in such forms as the consolidating Agent may specify, as of the end of such Fiscal Month;
(c) As soon as reasonably practicable, and in any event within 45 days after the end of each Fiscal Quarter, (i) the consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows flow for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement Quarter and (ii) the consolidating balance sheets and statements of Stockholders’ Equity operations and cash flow as at and for the portion of the last day of Fiscal Year ended with such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer on behalf of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(id) As soon as reasonably practicable, and in any event within one hundred 45 days after the end of each Fiscal Quarter (100commencing as of June 30, 1996), a Pricing Certificate setting forth a preliminary calculation of Cash Flow Leverage as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of Borrower and its Subsidiaries for such Fiscal Quarter, and as soon as reasonably practicable thereafter, in the event of any material variance in the actual calculation of Cash Flow Leverage from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(e) As soon as reasonably practicable, and in any event within 90 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year and (ii) consolidating balance sheets and statements of operations, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite LendersAgent, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Banks in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Banks. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13SECTIONS 6.11 through 6.15, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cf) As soon as reasonably practicable, and in any event not later than sixty (60) within 30 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity DateYear, INCLUDING projected consolidated balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(dg) Promptly after request receipt by the Administrative Agent or any LenderBorrower thereof, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Borrower by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(eh) Promptly after the same are available, and in any event within five (5) Banking Days 10 days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders Banks pursuant to other provisions of this Section SECTION 7.1;
(fi) Promptly after request by Lender, subject to confidentiality requirements of the Agent or any Governmental AgencyBank, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) with any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.Governmental Agency;
Appears in 1 contract
Financial and Business Information. So long as any Advance Loan remains unpaid, or any other Obligation remains unpaidunpaid or unperformed, or any portion of any of the Aggregate Revolving Commitments remains in force, Borrower Parent and the Borrowers shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to and the Lenders, a sufficient number of copies for all of the Lenders of the followingat Parent’s and Borrowers’ sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such each Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, together with the similar financial statements (iior supporting schedules reasonably acceptable to the Administrative Agent) such setting out the financial position and results of operations of any Unrestricted Subsidiaries. Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower Parent as fairly presenting the financial condition, results of operations and cash flows of Borrower Parent and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event prior to the penultimate Business Day of February in each Fiscal Year, a Certificate of a Responsible Official setting forth the Total Debt Ratio as of the last day of the fourth Fiscal Quarter of the preceding year, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of Parent and its Subsidiaries for such Fiscal Quarter (after elimination of all relevant items relating to Unrestricted Subsidiaries);
(c) As soon as practicable, and in any event within one hundred (100) 120 days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholdersshareholders’ equity and cash flows, in each case of Borrower Parent and its Subsidiaries for such Fiscal Year as at and for the Fiscal Year, all in reasonable detail, together with the similar financial statements (or supporting schedules reasonably acceptable to the Administrative Agent) setting out the financial position and results of operations of any Unrestricted Subsidiaries. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such . Such accountants’ report and opinion shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed BorrowerParent’s and Borrowers’ financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 Section 6.5 and 6.136.6, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower Parent and the Borrowers in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cd) As soon as practicable, and in any event not later than sixty (60) within 90 days subsequent to after the commencement of each Fiscal YearYear (commencing with the Fiscal Year ending December 31, 2008), a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next four succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected quarterly consolidated balance sheets, statements statement of operations and statements of cash flow and, for the remaining four Fiscal Years, projected annual consolidated condensed balance sheets and statements of operations and cash flow, of Parent and the Restricted Subsidiaries, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended, 1934 and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after the same are available, copies of the Nevada “Regulation 6.090 Report” and “6-A Report” and copies of any written communication to Parent or any of its Subsidiaries from any Gaming Board advising it of a violation of or non-compliance with, any Gaming Law by Parent or any of its Subsidiaries;
(g) Promptly after request by Lender, subject to confidentiality requirements of any Governmental AgencyCreditor, copies of any other report or other document that was filed by Borrower, Parent or any of its Subsidiaries with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking three Business Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking three Business Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is Parent or any of the Restricted Subsidiaries are taking or proposes propose to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that of any litigation, governmental investigation or any proceeding (including any litigation or proceeding by or subject to decision by any Gaming Board) pending:
(i) any Person has commenced a legal proceeding with respect to a claim against Borrower Parent or any of its the Restricted Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may could reasonably be expected to result in have a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take ;
(ii) with respect theretoto any material Indebtedness of Parent or any of the Restricted Subsidiaries; or
(iii) with respect to the Loan Documents, notice of the existence of the same;
(j) Promptly after the Borrowers have notified the Administrative Agent of any intention by the Borrowers to treat the Loans and/or Letters of Credit as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4) a duly completed copy of IRS Form 8886 or any successor form; and
(jk) Such other data and information as from time to time may be reasonably requested by any Creditor through the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsAgent.
Appears in 1 contract
Samples: Additional Credit Agreement (Harrahs Entertainment Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation (other than indemnity obligations for which no claim has been made) remains unpaidunpaid or unperformed, or any portion of any of the Commitments Commitment remains in force, Borrower the Company shall, unless the Administrative Agent (with the written approval of the Requisite LendersMajority Banks) otherwise consents, at Borrower’s sole expenseconsents in writing, deliver to the Banks and the Administrative Agent for distribution by it to Agent, at the Lenders, a sufficient number of copies for all of the Lenders of the followingCompany’s sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet sheets of Borrower the Company and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and Quarter, (ii) consolidated statements of incomeincome and (iii) consolidated statements of cash flow, operations in each case described in clauses (ii) and cash flows (iii) of this Section 7.1(a) of the Company and its Subsidiaries for such Fiscal Quarter, Quarter and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by a Senior Officer of the president or chief financial officer of Borrower Company as fairly presenting the financial condition, results of operations and cash flows changes in financial position of Borrower the Company and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than any requirement for footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred (100) 90 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet sheets of Borrower the Company and its Subsidiaries as at the end of such Fiscal Year and the consolidating and Year, (ii) consolidated statements of income, operations, stockholders’ equity income of the Company and its Subsidiaries for such Fiscal Year and (iii) consolidated statements of cash flows, in each case flow of Borrower the Company and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently appliedGenerally Accepted Accounting Principles, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP Xxxxx & Xxxxx or other independent public accountants of recognized national standing selected by Borrower and reasonably satisfactory to the Requisite LendersCompany, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of Borrower or any of its Subsidiariesthe Company generally, and copies of all annual, regular, periodic periodic, current and special reports and registration statements which Borrower the Company or any a Subsidiary of its Subsidiaries the Company may file or be required to file with the Securities and Exchange Commission under Section Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fd) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming awarePromptly, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware the Company obtains actual knowledge of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower the Company or any of its Subsidiaries is taking or proposes to take with respect thereto;
(ie) Promptly upon a Senior Officer of Borrower becoming aware that of the occurrence of any ERISA Event defined in clauses (i) any Person has commenced a legal proceeding with respect through (vii) or (xi) of the definition thereof involving Title IV of ERISA that could reasonably be expected to a claim against Borrower result in material liability to the Company or its Subsidiaries or any of its Subsidiaries ERISA Event that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may could reasonably be expected to result in a Material Adverse Effect, a written notice describing specifying the pertinent facts relating thereto and nature thereof, what action Borrower and/or the Company or any of its applicable Subsidiaries are ERISA Affiliates has taken, is taking or propose proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto;
(f) With reasonable promptness, copies of (a) each Schedule SB (Actuarial Information) to the annual report, if any (Form 5500 Series), filed by the Company or any of its Current ERISA Affiliates with the Internal Revenue Service with respect to each Pension Plan following the Administrative Agent’s request; (b) all notices received by the Company or any of its Current ERISA Affiliates from the sponsor of a Multiemployer Plan concerning an ERISA Event defined in clauses (i) through (vii) or (xi) of the definition thereof following the receipt thereof; and (c) such other documents or governmental reports or filings relating to any Employee Benefit Plan as the Administrative Agent shall reasonably request;
(g) promptly following any reasonable request therefor, provide information and documentation reasonably requested by the Administrative Agent or any Bank for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and the Beneficial Ownership Regulation; and
(jh) Such other data and material information related to any Borrower’s ability to meet its Obligations hereunder as from time to time may be reasonably requested by the Administrative Agent or the Requisite LendersMajority Banks. Information Documents required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with or furnished to the Securities and Exchange Commission) Commission and available to the public may be delivered electronically and if so delivered), shall be deemed to have been delivered for all purposes of this Agreement on the date (ai) on which Borrower the Company posts such documents, or provides notice to Lenders that such information has been posted a link thereto on Borrowerthe Company’s website on the Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, Schedule 13.7; or (bii) on which such documents are posted on Borrowerthe Company’s behalf on IntraLinks/IntraAgency or another relevant website (including, without limitation, the Platform; provided that (i) Company shall notify XXXXX System), if any, to which each Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent). The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request for delivery, and each Lender (by telecopier Bank shall be solely responsible for requesting delivery to it or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) maintaining its copies of such documents.
Appears in 1 contract
Samples: Credit Agreement (Amgen Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any Letter of Credit remains outstanding or any other Obligation remains unpaid, or any portion of any of the Commitments Commitment remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 60 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with OTHER THAN the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidated and consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidated and consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by a Senior Officer of the president or chief financial officer Licensee on behalf of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than OTHER THAN footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred 45 days after the end of each Fiscal Quarter, a Pricing Certificate setting forth a preliminary calculation of the Company Leverage Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of the Company for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Company Leverage Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(100c) As soon as practicable, and in any event within 105 days after the end of each Fiscal Year, (i) the consolidated and consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidated and consolidating and consolidated statements of income, operations, stockholders’ shareholders' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently consist- ently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP one of the six largest public accounting firms in the United States of America or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Lenders in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Lenders. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 6.11 and 6.136.12, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cd) As soon as practicable, and in any event not later than sixty (60) within 45 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next two succeeding Fiscal Year thereafter through Years, INCLUDING for the Maturity Datefirst such Fiscal Year, projected consolidated balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows, of Borrower and its Subsidiaries, all in reasonable detail;
(de) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters reports or recommendations submitted documents sent to the Company or the Licensee by Borrower (or any of its board of directors) by independent accountants Subsidiaries in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, Borrower or any of its Subsidiaries with any Governmental AgencyAgency (OTHER THAN any report regarding Borrower and its Subsidiaries and their confidential business or financial information);
(g) Promptly upon a Senior Officer of Borrower, becoming awareAs soon as practicable, and in any event within five (5) Banking ten Business Days after becoming aware, a Senior Officer of the occurrence Licensee becomes aware of the occurrence, with respect to Borrower, of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving in connection with any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking five Business Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower or any of its Subsidiaries is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Business Days after a Senior Officer of Borrower the Licensee becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Business Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is or its Subsidiaries are taking or proposes propose to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower the Licensee becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 5,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a written credit agreement or material lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries orSubsidiaries, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 5,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, (iv) any labor union has notified Borrower of its intent to strike Borrower or any of its Subsidiaries on a date certain and such strike would involve more than 100 employees of Borrower or its Subsidiaries, or (v) any Gaming Board has indicated its intent to consider or act upon a License Revocation or a fine or penalty of $1,000,000 or more with respect to Borrower or any of its Subsidiaries, a written notice describing the pertinent facts relating thereto and what action Borrower and/or or its applicable Subsidiaries are taking or propose to take with respect thereto;
(j) Not later than the twentieth day of each calendar month, a construction progress report with respect to the Temporary Project as of the last day of the preceding calendar month in a form reasonably acceptable to the Administrative Agent, which report shall compare the status of construction and amounts expended to the construction timetable and budget;
(k) As soon as practicable, and in any event by the thirtieth day in the next following month, an operating revenue report for the preceding calendar month with respect to each operating casino property of Borrower and its Subsidiaries, segmented for each such casino property and otherwise in a form reasonably acceptable to the Administrative Agent, together with a written narrative statement discussing any significant trends reflected therein signed by a Senior Officer of the Licensee on behalf of Borrower;
(l) Promptly following receipt thereof, copies of all material changes to the construction plans, budget, timetable and the related architectural, construction and engineering contracts for the Temporary Project, and with an advance draft copy of any proposed such change that involves more than $10,000,000;
(m) Promptly following any Senior Officer of the Licensee becoming aware of any change in the credit ratings assigned by Xxxxx'x or S&P to the Company Loan Agreement (whether senior secured or senior unsecured) written notice of such change and, if the same will result in a revision to the Company Rating, a revised Pricing Certificate setting forth the revised Company Rating;
(n) Promptly and in any event within two Business Days following the receipt of Borrower any notices under the Lease or the Sublease, and concurrently with the delivery by Borrower of any notices to the counterparties under the Lease or the Sublease, copies of such notices;
(o) Concurrently with their delivery to the Administrative Agent and the Banks under the Company Loan Agreement, copies of all financial statements of the Company delivered in connection with the Company Loan Agreement;
(p) As soon as practicable, and in any event not less than 10 days (or, if acceptable to the Administrative Agent, a shorter period) prior to the proposed effective date thereof, written notice of any proposed material amendment, material modification or material waiver of the material terms and provisions of any of the Material Documents or the Plans and Budget; and
(jq) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Loan Agreement (MGM Mirage)
Financial and Business Information. So long as any Advance remains unpaid, unpaid or any other Obligation remains unpaid, or any portion of any of the Commitments Commitment remains in force, Borrower shall, unless the Administrative Managing Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Managing Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event by the 20th day of the next following month, a construction progress report as of the last day of the preceding calendar month during the Construction Period in a form reasonably acceptable to the Managing Agent, which report shall compare the status of construction and amounts expended to the Construction Timetable and the Construction Budget; PROVIDED that the construction progress reports delivered by CSG pursuant to Section 7.7 shall satisfy the form of this requirement unless the Managing Agent notifies Borrower to the contrary;
(b) As soon as practicable, and in any event by the 30th day of the next following month, financial statements of Borrower for the preceding calendar month (commencing with the first full calendar month after the Completion Date) in a form reasonably acceptable to the Managing Agent, together with a written narrative statement discussing any significant trends reflected therein signed by a Senior Officer of Borrower;
(c) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with OTHER THAN the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and (ii) if applicable and if requested by the Managing Agent, the consolidating balance sheets and statements of operations as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than OTHER THAN footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(id) As soon as practicable, and in any event within one hundred (100) 120 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year and (ii) if applicable and if requested by the Managing Agent, consolidating balance sheets and statements of operations, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP one of the six largest public accounting firms in the United States of America or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Lenders in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Lenders. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.136.11 through 6.14, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(ce) As soon as practicable, and in any event not later than sixty (60) within 45 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next four succeeding Fiscal Year thereafter through Years, INCLUDING for the Maturity Datefirst such Fiscal Year, projected consolidated balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows, of Borrower and its Subsidiaries, all in reasonable detail;
(df) Promptly after request by the Administrative Managing Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Borrower by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(eg) Concurrently with delivery thereof to the banks under the Parent Bank Credit Facility, copies of the quarterly and annual financial statements of Parent furnished to such banks by Parent (or, if there is at any time no Parent Bank Credit Facility, the financial statements required to be delivered under the Parent Bank Credit Facility as it existed immediately prior to its ceasing to be in effect); PROVIDED that the delivery of any such financial statements to the agent under the Parent Bank Credit Facility shall satisfy the requirement of this Section 8.1(G) as to any Lender that is also a bank under that credit facility;
(h) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1Section;
(fi) Promptly after request by the Managing Agent or any Lender, subject to confidentiality requirements copies of the Nevada "Regulation 6.090 Report" and "6-A Report" and copies of any Governmental Agencywritten communication to Parent or Borrower from any Gaming Board advising it of a violation of or non-compliance with any Gaming Law by Parent or Borrower;
(j) Promptly after request by the Managing Agent or any Lender, copies of any other report or other document (except any such report or document pertaining solely to personal matters respecting an individual) that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) with any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.Governmental Agency;
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, unpaid or any portion of any of the Commitments remains in forceunperformed, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) Lender otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the LendersLender, a sufficient number of copies for all of the Lenders of the followingat Borrower's sole expense:
(ia) As soon as practicable, and in any event within fifty forty-five (5045) days after the end of each Fiscal Quarter ending March 31fiscal quarter, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30fiscal quarter that ends on December 31, 2005)2002, (i) the consolidating and consolidated balance sheet sheets of Borrower and its Subsidiaries any Affiliate of Borrower which owns and/or operates the Facility or any given portion of the Project as at the end of such Fiscal Quarter and the consolidating and consolidated fiscal quarter, (ii) statements of income, operations expense, retained earnings and of cash flows flow of Borrower and any Affiliate of Borrower which owns and/or operates the Facility or any given portion of the Project as at the end of such fiscal quarter and for such Fiscal Quarter, and the portion of the Fiscal Year fiscal year ended with such Fiscal Quarterfiscal quarter, together with a statement and (iii) the statements of Stockholders’ Equity as cash flow of Borrower and any Affiliate of Borrower which owns and/or operates the Facility or any given portion of the last day Project for such fiscal quarter and for the portion of the fiscal year ended with such Fiscal Quarterfiscal quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer Chief Executive Officer and Chief Financial Officer of Borrower as fairly presenting the financial condition, results of operations and changes in financial position or cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than any requirement for footnote disclosures), ) consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred twenty (100120) days after the end of each Fiscal Yearfiscal year, starting with the consolidating and consolidated fiscal year ended September 30, 2002, (i) the audited balance sheet sheets of Borrower and its Subsidiaries any Affiliate of Borrower which owns and/or operates the Facility or any given portion of the Project as at the end of such Fiscal Year and the consolidating and consolidated fiscal year, (ii) audited statements of income, operations, stockholders’ equity income and retained earnings and of cash flows, in each case flows of Borrower and its Subsidiaries any Affiliate of Borrower which owns and/or operates the Facility or any given portion of the Project for such Fiscal Yearfiscal year, and (iii) audited statements of cash flow of Borrower and any Affiliate of Borrower which owns and/or operates the Facility or any given portion of the Project for such fiscal year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, certified without material qualification by a firm of internationally recognized independent certified public accountants reasonably acceptable to Lender (subject to constraints imposed by governmental auditing requirements) and such consolidated certified by the Chief Executive Officer and the Chief Financial Officer; The monthly and annual financial statements with respect to Borrower to be furnished by Borrower to Lender under this Section 13.1(b) and Section 13.1(d) herein shall be accompanied prepared on a combined basis and, except with respect to the balance sheets and statements of changes in financial position, on an activity-by a report of PricewaterhouseCoopers LLP activity basis (or on such other independent public accountants of recognized standing selected by Borrower and basis as shall be reasonably satisfactory to the Requisite LendersLender), which report shall including, without limitation, separate income statements with respect to the casino gaming operation to be prepared conducted within the Facility or elsewhere in accordance the Project, any hotel operations to be conducted in connection with generally accepted auditing standards as at such datethe Facility or the Project and all other operations of Borrower, and shall not be subject include, without limitation, a balance sheet, an income statement, and a statement of changes in financial position, computations of the EBITDA of the Borrower, the Debt Coverage Ratio, the Debt Coverage Ratio Threshold, Sinking Fund Account balance and reports of the Borrower's Capital Expenditures and incurrence of Recourse Obligations. The Borrower shall also provide a summary of deposits into the Cash Account, Available Cash Balances, Available Cash Flow, Permitted Uses of Cash and Permitted Transfers for such period, if applicable. All financial statements provided with respect to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants Affiliates of Borrower referred to in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report this Section 13.1 shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for same form and shall contain the certification of such same information as the financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants Borrower referred to in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices)this Section 13.1.
(c) Intentionally deleted.
(d) Commencing with the Interest Payment Date on February 15, 2003, on each Interest Payment Date, provide monthly financial statements with respect to the prior calendar month for the Borrower and any Affiliate of Borrower which owns and/or operates the Facility or any given portion of the Project, certified by the Chief Executive Officer and the Chief Financial Officer, in such form as shall permit Borrower to confirm Borrower's compliance with its obligations under this Agreement and the other Loan Documents;
(e) As soon as practicable, and in any event not later than sixty within one hundred eighty (60180) days subsequent to after the commencement of each Fiscal Yearfiscal year, a budget and projection of Borrower and its Subsidiaries setting forth (i) projected financial statements by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through of the Maturity Datethree fiscal years immediately subsequent to that fiscal year, including, in each case, projected balance sheets, statements of operations income and retained earnings and statements of cash flowflow of Borrower, all in reasonable detaildetail (certified by the Chief Financial Officer and the Chief Executive Officer) and in any event to include (i) projected distributions to be made to the Nation by Borrower and (ii) projected Capital Expenditures;
(df) Promptly after request following receipt by the Administrative Agent or any LenderBorrower, copies of any detailed audit reports, management letters reports or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, Borrower or any audit of any of themBorrower;
(eg) Promptly after following a filing, copies of any specific report or other document filed by Borrower with any Governmental Agency, including without limitation all reports which Borrower is required to file with the same are availableCommission under 25 C.F.R. Part 514;
(h) So long as any Advance remains unpaid, or any other Obligation remains unpaid or unperformed (other than the obligations referenced in Section 3.18), Borrower shall, unless the Lender otherwise consents, deliver to the Lender, at Borrower's sole expense:
(i) Promptly, upon written request of the Lender, copies of each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed with the Internal Revenue Service with respect to each ERISA Plan;
(ii) Promptly, and in any event within five ten (510) Banking Days days after filing with the Securities and Exchange Commission, copies of each annual report, proxy Borrower knows or financial statement or other report or communication sent has reason to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, know of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Internal Revenue Code) involving in connection with any Pension ERISA Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no thereto unless such notice shall prohibited transaction would not reasonably be required pursuant expected to this Section 7.1(g) if result in liability to the anticipated liability is less than Borrower and the ERISA Affiliates together in excess of One Hundred Thousand Dollars ($100,000);
(hiii) Promptly, and in any event within ten (10) days after the Borrower knows or has reason to know that any ERISA Event has occurred, a statement of the chief financial officer of the Borrower describing such ERISA Event and the action, if any, which the Borrower, such Subsidiary or such ERISA Affiliate proposes to take with respect thereto unless such ERISA event would not reasonably be expected to result in liability to the Borrower and the ERISA Affiliates together in excess of One Hundred Thousand Dollars ($100,000);
(iv) Promptly, and in any event within five (5) Banking Days after the Borrower receives, or knows that any ERISA Affiliates has received, copies of each notice received by the Borrower or any ERISA Affiliate from the PBGC stating its intention to terminate any ERISA Plan or to have a trustee appointed to administer any ERISA Plan;
(v) At the time notice is given or required to be given to the PBGC under Section 302(f)(4)(A) of ERISA or Section 412(n)(4)(A) of the Code of the failure to make timely payments to an ERISA Plan, a copy of any such notice filed and a statement of the chief financial officer of the Borrower setting forth (A) sufficient information necessary to determine the amount of the lien under Section 302(f)(3) or Section 412(n)(3) of the Code, (B) the reason for the failure to make the required payments and (C) the action, if any, which the Borrower or its ERISA Affiliate proposes to take with respect thereto;
(i) As soon as practicable, and in any event not less than ten (10) days (or, if acceptable to the Lender, a shorter period) prior to the proposed effective date thereof, written notice of any proposed amendment, modification or waiver of the terms and provisions of any of the material documents, with respect to the Project or the Project Budget.
(j) As soon as practicable, and in any event within two five (25) Banking Days after a Senior Officer senior officer of the Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is and the Nation are taking or proposes propose to take with respect thereto;
(ik) Promptly upon a Senior Officer senior officer of the Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any that is, in the reasonable opinion of its Subsidiaries that is their independent legal counsel, One Million Dollars ($250,000 1,000,000) or more in excess of the amount thereof that is fully covered by insuranceinsurance (subject to applicable deductibles and retentions), (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a written credit agreement with respect to Indebtedness in excess of One Million Dollars ($1,000,000) or lease involving aggregate unpaid rent in excess of One Million Dollars ($250,000 or more 1,000,000) has asserted a default thereunder on the part of Borrower or any of its Subsidiaries orBorrower, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of One Million Dollars ($250,000 or 1,000,000), (iv) any labor union has notified Borrower of its intent to strike Borrower on a date certain, which otherwise may strike could reasonably be expected to result have a material adverse effect upon the business, operations, assets or financial or other condition of Borrower or the Project, as contemplated hereby, or the ability of Borrower to perform its obligations under this Agreement or the other Loan Documents, or (v) any other event or circumstance occurs or exists that would constitute a material adverse effect upon the business, operations, assets or financial or other condition of Borrower, as contemplated hereby, or the ability of Borrower to perform its obligations under this Agreement or the other Loan Documents, in a Material Adverse Effect, each case a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are is taking or propose to take with respect thereto;
(l) Not later than the fifteenth (15th) day of each calendar month, such information as may be required for the completion of the monthly Construction Progress Report;
(m) Within ten (10) days after request from Lender, a statement, duly acknowledged and certified, setting forth (i) the amount then owing under this Agreement and the Note, (ii) the date through which Current Interest and Variable Interest hereunder have been paid, (iii) the amount of Shortfall, (iv) the amount of accrued but unpaid Fixed Interest and (v) any offsets, counterclaims, credits, or defenses to the payment of the Loan, and acknowledging that this Agreement and the other Loan Documents are valid, legal and binding obligations and have not been modified or if modified, giving the particulars of such modification; and
(jn) Such other data and information regarding the Borrower and the business of the Project as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsLender.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of either the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event by the 20th day of the next following month, all information requested by CSG for the preparation of its construction progress report as of the last day of the preceding calendar month during the Construction Period in a form reasonably acceptable to the Administrative Agent, which report shall compare the status of construction and amounts expended to the Construction Timetable and the Construction Budget;
(b) As soon as practicable, and in any event by the 30th day of the next following month, financial statements of Borrower for the preceding calendar month (commencing with the first full calendar month after the Completion Date) in a form reasonably acceptable to the Administrative Agent, together with a written narrative statement discussing any significant trends reflected therein signed by a Senior Officer;
(c) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and (ii) if applicable and if requested by the Administrative Agent, the consolidating balance sheets and statements of operations as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer of Borrower a Senior Officer as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(id) As soon as practicable, and in any event within one hundred 45 days after the end of each Fiscal Quarter, a Pricing Certificate setting forth a preliminary calculation of the Pricing Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of Borrower and its Subsidiaries for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Pricing Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(100e) As soon as practicable, and in any event within 120 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholdersmembers’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year and (ii) if applicable and if requested by the Administrative Agent, consolidating balance sheets and statements of operations, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Lenders in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Lenders. Such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 6.11 and 6.136.12, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cf) As soon as practicable, and in any event not later than sixty (60) within 45 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next four succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected consolidated and consolidating balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated and consolidating condensed balance sheets and statements of operations and cash flows, of Borrower and its Subsidiaries, all in reasonable detail;
(dg) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the executive committee (or its board the audit committee of directorsthe executive committee) of Borrower by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(eh) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesStation, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Station may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.110.1;
(fi) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements copies of the Nevada “Regulation 6.090 Report” and “6-A Report”, and copies of any Governmental Agencywritten communication to Borrower from any Gaming Board advising it of a violation of or non-compliance with any Gaming Law by Borrower or any of its Subsidiaries;
(j) Promptly after request by the Administrative Agent or any Lender, copies of any other report or other document that was filed by Borrower, Borrower with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Loan Agreement (Station Casinos Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaidunpaid or unperformed, or any portion of any of the Commitments Commitment remains in force, Borrower Parent and the Borrowers shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to and the Lenders, a sufficient number of copies for all of the Lenders of the followingat Parent's and Borrowers' sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such each Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower Parent as fairly presenting the financial condition, results of operations and cash flows of Borrower Parent and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event prior to the penultimate Business Day of February in each Fiscal Year, a Certificate of a Responsible Official setting forth the Total Debt Ratio as of the last day of the fourth Fiscal Quarter of the preceding year, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of Parent and its Subsidiaries for such Fiscal Quarter;
(c) As soon as practicable, and in any event within one hundred (100) 120 days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ shareholders' equity and cash flows, in each case of Borrower Parent and its Subsidiaries for such Fiscal Year as at and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, . Such accountants' report and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report opinion shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s Parent's and Borrowers' financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 Section 6.5 and 6.136.6, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower Parent and the Borrowers in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cd) As soon as practicable, and in any event not later than sixty (60) within 90 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next four succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected quarterly consolidated balance sheets, statements statement of operations and statements of cash flow and, for the remaining four Fiscal Years, projected annual consolidated condensed balance sheets and statements of operations and cash flow, of Parent and its Subsidiaries, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended, 1934 and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1Section;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments Commitment remains in force, Borrower Borrowers shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s Borrowers' sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30, 2005)Quarter, the consolidated and consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Quarter and the consolidated and consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer of Borrower Borrowers as fairly presenting the financial condition, results of operations and cash flows of Borrower Parent and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
(i) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(db) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, Borrowers or any of its Subsidiaries, or any audit of any of them;
(ec) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrowers, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Borrowers may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fd) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, Borrowers with any Governmental Agency;
(ge) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is Borrowers are taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hf) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is Borrowers are taking or proposes to take with respect thereto;
(ig) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Borrowers that is $250,000 1,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 1,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 1,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries Borrowers or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Borrowers under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 1,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries Borrowers are taking or propose proposes to take with respect thereto; and
(jh) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Loan Agreement (Safeskin Corp)
Financial and Business Information. So long as any Advance remains unpaid, Each Borrower shall deliver or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver cause to the Administrative Agent for distribution by it be delivered to the Lenders, a sufficient number of copies for all of the Lenders of Lender the following:
a. Financial Statements and Collateral Reports: such data, reports, statements and information, financial or otherwise, as Lender may reasonably request, including, without limitation:
(ia) As soon as practicable, and in any event within fifty Within thirty (5030) days after the end of each Fiscal Quarter ending March 31Month, June 30 financial information regarding the Borrowers, certified by the Chief Financial Officer of Parent, consisting of consolidated (i) unaudited balance sheets as of the close of such Fiscal Month and September 30 (commencing with the related statements of income and cash flows for that portion of the Fiscal Quarter Year ending June 30as of the close of such Fiscal Month; and (ii) unaudited statements of income and cash flows for such Fiscal Month, 2005setting forth in comparative form the figures for the corresponding period in the prior year and the figures contained in the Projections for such Fiscal Year, all prepared in accordance with GAAP (subject to normal year-end adjustments).
(b) Within forty five (45) days after the end of each Fiscal Quarter, the consolidating and consolidated balance sheet of Borrower financial information regarding Parent and its Subsidiaries consolidated subsidiaries, certified by the Chief Financial Officer of Parent, consisting of consolidated (i) unaudited balance sheets as at of the end close of such Fiscal Quarter and the consolidating and consolidated related statements of income, operations income and cash flows for that portion of the Fiscal Year ending as of the close of such Fiscal Quarter; (ii) unaudited statements of income and cash flows for such Fiscal Quarter, setting forth in comparative form the figures for the corresponding period in the prior year and the portion of the Fiscal Year ended with such Fiscal Quarteron a trailing twelve month basis, together with and (iii) including an income statement for Parent on a statement of Stockholders’ Equity consolidated basis by business segment as of the last day of such Fiscal Quartercurrently reported by Parent, all in reasonable detail, (ii) such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries prepared in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments).
(ic) As soon as practicableWithin forty five (45) days after the end of each Fiscal Quarter, the actual results of operations of Borrowers for the Fiscal Quarter and in any event within one hundred on a trailing twelve (10012) month basis, compared to the Projections for such Fiscal Quarter and the twelve (12) month period.
ii. Within ninety (90) days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower audited Financial Statements for Parent and its Subsidiaries as at the end on a consolidated basis, consisting of such Fiscal Year balance sheets, cash flow statements and the consolidating statements (including statements on a business segment basis) of income and consolidated statements of incomeretained earnings and, operations, stockholders’ equity and cash flows, setting forth in comparative form in each case of Borrower and its Subsidiaries the figures for such the previous Fiscal Year, all in reasonable detail. Such financial statements which Financial Statements shall be prepared in accordance with GAAPGAAP and certified without qualification, consistently appliedby an independent certified public accounting firm of national standing and acceptable to Lender.
iii. within twenty (20) days of filing, and such consolidated financial statements but in no event more than fifteen (15) days after the last permitted extension for filing without penalty, each Borrower shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance provide Lender with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, signed federal tax returns.
iv. Within ninety (ii90) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at days after the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, three years projections for each Borrower, prepared by Borrowers in light of the past operations of its businesses, but including future payments of known contingent liabilities, prepared on a budget quarterly basis for the next fiscal year and projection annually for the following two years (“Projections”). The Projections shall be based upon the same accounting principles as those used in the preparation of the financial statements described above and the estimates and assumptions stated therein, all of which Borrowers believe to be reasonable and fair in light of current conditions and current facts known to Borrowers and, reflect Borrowers’ good faith and reasonable estimates of the future financial performance of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four period set forth therein.
v. Within fifteen (415) days after the end of each Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity DateMonth a Borrowing Base Certificate, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies which shall include detailed reporting as to eligibility of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsSBA(7)a Loan Receivables.
Appears in 1 contract
Samples: Loan and Security Agreement (Newtek Business Services Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, Borrowers shall deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of and each Lender the following:
(a) Financial Statements and Collateral Reports:
(i) As soon as practicable, within one hundred and in any event within fifty five (50105) days after the end of each Fiscal Quarter ending March 31fiscal year of Borrower, June 30 Financial Statements of Borrowers and September 30 (commencing with Sureties for such year including the Fiscal Quarter ending June 30, 2005), the consolidating and consolidated balance sheet of Borrower Borrowers and its Subsidiaries Sureties as at the end of such Fiscal Quarter fiscal year and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity cash flows and income statement for such fiscal year, all on a consolidated and consolidating basis, setting forth in the consolidated statements in comparative form, the corresponding figures as at the end of and for the last day of such Fiscal Quarterprevious fiscal year, all in reasonable detail, including all supporting schedules, and audited and certified by independent public accountants of recognized standing, selected by Borrowers and reasonably satisfactory to the Agent to have been prepared in accordance with GAAP, and such independent public accountants shall also provide an unqualified opinion that the Financial Statements present fairly the Borrowers' and Sureties' financial condition. Such independent accountants shall also provide a statement certifying that nothing has come to their attention to cause them to believe that calculations contained in the compliance certificate are inaccurate.
(ii) such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP within sixty (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
(i) As soon as practicable, and in any event within one hundred (10060) days after the end of each Fiscal Yearfiscal quarter, the Borrowers' and Sureties' internally prepared quarterly consolidated and consolidating and consolidated Financial Statements, including balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of incomesheet, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations income statement and statements of cash flow, flows and a complete detailed listing of all in reasonable detailAccrual Leases existing at any time during the subject fiscal quarter;
(diii) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within thirty-five (535) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence end of each calendar month, Borrower's Lease receivables aging report, the Working Capital Borrowing Base Certificate and Collateral Coverage Ratio calculations and such event) or (ii) non-exempt “prohibited transaction” (other reports as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunderAgent reasonably deems necessary, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof certified by Borrower's chief financial officer as true and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect theretocorrect; and
(jiv) Such other data and information such data, reports, statements, information, financial or otherwise, as from time to time Agent may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsrequest.
Appears in 1 contract
Samples: Loan and Security Agreement (Capital Associates Inc)
Financial and Business Information. So The Company will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with generally accepted accounting principles, and furnish to each holder of Notes that is an Institutional Investor:
7.1.1 Within 90 days after the close of each of its fiscal years, financial statements prepared in accordance with Agreement Accounting Principles on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, statements of income and statements of cash flows, accompanied by (a) an audit report, unqualified as to scope, of BDO Sxxxxxx or another nationally recognized firm of independent public accountants or other independent public accountants reasonably acceptable to the Required Holders (provided that so long as the Company is a reporting company, delivery of the Form 10-K filed by the Company with respect to a fiscal year as promptly as practicable but in no event later than 5 Business Days after the filing thereof shall satisfy the requirement for the annual audit report and consolidated financial statements for such fiscal year under this Section) and (b) any Advance remains unpaidmanagement letter prepared by said accountants.
7.1.2 Within 45 days after the close of the first three quarterly periods of each of its fiscal years, for itself and its Subsidiaries, consolidated unaudited balance sheets as at the close of each such period and consolidated statements of income and a statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, all certified as to fairness of presentation, compliance with Agreement Accounting Principles and consistency by its chief financial officer or treasurer (provided that so long as the Company is a reporting company, delivery of the Form 10-Q filed by the Company with respect to a fiscal quarter as promptly as practicable but in no event later than 5 Business Days after the filing thereof shall satisfy the requirement for certified quarterly consolidated financial statements for such fiscal quarter under this Section).
7.1.3 Together with the financial statements required under Sections 7.1.1 and 7.1.2, a compliance certificate signed by its chief financial officer or treasurer showing the calculations necessary to determine compliance with Sections 10.1, 10.3, 10.4, 10.5, 10.12, 10.13, 10.14, 10.15, 10.17, 10.18 and 10.19, an Officer’s Certificate stating that no Default or Event of Default exists, or if any Default or Event of Default exists, stating the nature and status thereof, and a certificate executed and delivered by the chief executive officer or chief financial officer stating that the Company and each of its principal officers are in compliance with all requirements of Section 302 and Section 906 of the Sxxxxxxx-Xxxxx Act of 2002 and all rules and regulations related thereto (provided that so long as the Company is a reporting company, delivery of the certificates required pursuant to Section 302 and 906 of the Sxxxxxxx-Xxxxx Act of 2002 as contained in the Form 10-K or Form 10-Q filed by the Company and delivered pursuant to Sections 7.1.1 or 7.1.2 shall satisfy the requirement for such certification of compliance with the Sxxxxxxx-Xxxxx Act under this Section).
7.1.4 [Intentionally Omitted]
7.1.5 As soon as possible and in any event within 10 days after the Company knows that any Reportable Event has occurred with respect to any Plan, a statement, signed by the chief financial officer or treasurer of the Company, describing said Reportable Event and the action which the Company proposes to take with respect thereto.
7.1.6 As soon as possible and in any event within 10 days after receipt by the Company thereof, a copy of (a) any notice or claim to the effect that the Company or any of its Subsidiaries is or may be liable to any Person as a result of the release by the Company, any of its Subsidiaries, or any other Obligation remains unpaidPerson of any toxic or hazardous waste or substance into the environment, and (b) any notice alleging any violation of any federal, state or local environmental, health or safety law or regulation by the Company or any portion of its Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect.
7.1.7 Promptly upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which the Company or any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (its Subsidiaries files with the written approval SEC, including, without limitation, all certifications and other filings required by Section 302 and Section 906 of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number Sxxxxxxx-Xxxxx Act of copies for 2002 and all of the Lenders of the following:rules and regulations related thereto.
(i) 7.1.8 As soon as practicable, and in any event within fifty (50) 90 days after the end beginning of each Fiscal Quarter ending March 31fiscal year of the Company, June 30 a copy of the plan and September 30 forecast (commencing with the Fiscal Quarter ending June 30, 2005), the consolidating and including a projected consolidated balance sheet sheet, income statement and funds flow statement) of Borrower the Company for such fiscal year.
7.1.9 As soon as possible, and in any event within 3 Business Days (in the case of the Company) and 15 days (in the case of any Guarantor) after the occurrence thereof, a reasonably detailed notification to each holder of Notes and its Subsidiaries as at counsel of any change in the end jurisdiction of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion organization of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such financial statements shall be certified by the president Company or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustmentsany Guarantor.
(i) 7.1.10 As soon as practicable, and in any event within one hundred thirty (10030) days after the end close of each Fiscal Yearcalendar month, the consolidating and consolidated balance sheet Company shall provide the holders of Borrower and its Subsidiaries as at Notes with a Borrowing Base Certificate (containing a certification by an Authorized Officer that the end of Receivables Portfolios included in the Borrowing Base referenced in such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, ifBorrowing Base Certificate are performing, in the opinion aggregate, at a sufficient level to support the amount of such accountantsBorrowing Base), any together with such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections supporting documents (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth without limitation (i) to the extent requested by Fiscal Quarter for the four (4) Fiscal Quarters Required Holders, copies of that Fiscal Year all bills of sale and purchase agreements evidencing the acquisition of Receivables Portfolios included in the Borrowing Base, and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) a copy of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other most recent static pool report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more such Receivables Portfolios as the Required Holders reasonably deem desirable, all certified as being true and correct in excess all material respects by an Authorized Officer of the amount thereof that is fully covered by insurance, (ii) Company). The Company may update the Borrowing Base Certificate more frequently than monthly and the most recently delivered Borrowing Base Certificate shall be the applicable Borrowing Base Certificate for purposes of determining the Borrowing Base at any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; andtime.
(j) 7.1.11 Such other data and information (including non-financial information) as any holder of Notes may from time to time may be reasonably requested by the Administrative Agent or the Requisite Lendersrequest. Information If any information which is required to be delivered pursuant to furnished under this Section 7.1 (is required by law or regulation to be filed by the extent any such documents are included in materials otherwise filed Company with a government body on an earlier date, then the Securities and Exchange Commission) information required hereunder shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that furnished by no later than 5 Business Days after such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsearlier date.
Appears in 1 contract
Samples: Senior Secured Note Purchase Agreement (Encore Capital Group Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Majority Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event by the thirtieth calendar day in the next following month (but not later than the last Business Day of such calendar month), an operating revenue report for the preceding calendar month (other than a month that is the last month of a Fiscal Quarter or Fiscal Year, in which case the operating revenue report for such month shall be delivered as soon as practicable and in any event within 60 days after the end of such calendar month) for each Gaming Property, in a form reasonably acceptable to the Administrative Agent, together with a written narrative statement discussing any significant trends reflected therein signed by a Senior Officer of Borrower;
(b) As soon as practicable, and in any event within fifty (50) 50 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in each Fiscal Year), (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, Quarter and (ii) supporting consolidating financial information in the form approved by the Administrative Agent prior to the Closing Date or such other form as may be acceptable to the Administrative Agent. Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ic) As soon as practicable, and in any event within one hundred 50 days after the end of the fourth Fiscal Quarter in each Fiscal Year, a Pricing Certificate setting forth a preliminary calculation of the Net Total Debt Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of Borrower and its Subsidiaries for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Net Total Debt Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(100d) As soon as practicable, and in any event within 105 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower and its Subsidiaries Subsidiaries, for such Fiscal Year, all Year and (ii) supporting consolidating financial information in reasonable detailthe form approved by the Administrative Agent prior to the Closing Date or such other form as may be acceptable to the Administrative Agent. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Majority Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Majority Lenders in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Lenders. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 6.11 through 6.14, and 6.13, Section 6.18 have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(ce) As soon as practicable, and in any event not later than sixty (60) within 60 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) Borrower's statement of operations by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis within 105 days after the commencement of each Fiscal Year, a budget and projection of Borrower's balance sheet for each succeeding that Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements and a budget and projection of Borrower's statement of operations and statements of cash flowbalance sheet by Fiscal Year for the next two succeeding Fiscal Years, all in reasonable detail;
(df) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Borrower by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(eg) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fh) Promptly after the same are available, copies of any written communication to Borrower or any of the Restricted Subsidiaries from any Gaming Board advising it of any material violation of or material non-compliance with any Gaming Law by Borrower or any of the Restricted Subsidiaries;
(i) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its the Restricted Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) with any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.Government Agency;
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation (other than indemnity obligations for which no claim has been made) remains unpaidunpaid or unperformed, or any portion of any of the Commitments remains in force, the Borrower shall, unless the Administrative Agent (with the written approval of the Requisite LendersMajority Banks) otherwise consentsconsents in writing, deliver to the Banks and the Administrative Agent, at the Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet sheets of the Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and Quarter, (ii) consolidated statements of incomeincome and (iii) consolidated statements of cash flow, operations in each case described in clauses (ii) and cash flows (iii) of this Section 7.1(a) of the Borrower and its Subsidiaries for such Fiscal Quarter, Quarter and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by a Senior Officer of the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows changes in financial position of the Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than any requirement for footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred (100) 90 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet sheets of the Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and Year, (ii) consolidated statements of income, operations, stockholders’ equity income of the Borrower and its Subsidiaries for such Fiscal Year and (iii) consolidated statements of cash flows, in each case flow of the Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently appliedGenerally Accepted Accounting Principles, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP Xxxxx & Xxxxx or other independent public accountants of recognized national standing selected by Borrower and reasonably satisfactory to the Requisite LendersBorrower, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance the Loan remains unpaid, or any other Obligation remains unpaid, unpaid or any portion of any of the Commitments remains in forceunperformed, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) Required Lenders otherwise consents, at Borrower’s sole expenseconsent, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the followingat Borrower’ sole expense:
(ia) As with respect to the Fiscal Year ended December 31, 2011, as soon as practicableavailable and without unreasonable delay, and with respect to each Fiscal Year ending thereafter, as soon as available but in any event within fifty (50) 120 days after the end of such Fiscal Year:
(1) the balance sheet as at the end of such Fiscal Year and related statements of income, operations and cash flows of Borrower for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail, prepared using a methodology that may not conform to GAAP but fairly presents the financial condition of Borrower as of the dates and for the periods indicated, in conformity with Borrower’s usual and customary practices consistently applied throughout the periods covered, accompanied by a certificate signed by the chief executive officer, chief financial officer, treasurer or controller of Borrower to the effect that such statements are true and correct in all material respects; and
(2) the consolidated and consolidating balance sheet of Parent and its Subsidiaries, as at the end of such Fiscal Year, and the related consolidated and consolidating statements of income, operations and cash flows of Parent and its Subsidiaries for such Fiscal Year, setting forth in comparative form the figures for the previous Fiscal Year and showing changes in shareholders’ equity for such Fiscal Year, audited by Ernst & Young or another firm of certified public accountants reasonably approved by Administrative Agent.
(b) with respect to the Fiscal Quarter ended March 31, 2012, as soon as available and without unreasonable delay, and with respect to each Fiscal Quarter ending March 31, June 30 and September 30 thereafter (commencing with other than the fourth Fiscal Quarter ending June 30, 2005of any Fiscal Year), as soon as available but in any event within 45 days after the consolidating and consolidated end of such Fiscal Quarter:
(1) the balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated related statements of income, operations and cash flows of Borrower for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such prepared using a methodology that may not conform to GAAP but fairly presents the financial statements shall be certified by the president or chief financial officer condition of Borrower as fairly presenting of the dates and for the periods indicated, in conformity with Borrower’s usual and customary practices consistently applied throughout the periods covered, accompanied by a certificate signed by the chief executive officer, chief financial conditionofficer, results of operations and cash flows treasurer or controller of Borrower to the effect that such statements are true and correct in all material respects;
(2) the consolidated and consolidating balance sheets of Parent and its Subsidiaries in accordance with GAAP (other than footnote disclosures)Subsidiaries, consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
(i) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year Quarter, the related consolidated and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case income or operations of Borrower Parent and its Subsidiaries for such Fiscal Quarter and for the portion of the Fiscal Year then ended, and the related consolidated and consolidating statements of changes in shareholders’ equity and cash flows for the portion of the Fiscal Year then ended, in each case setting forth in comparative form, the figures for the corresponding Fiscal Quarter of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year, all in reasonable detail. Such , accompanied by a certificate signed by the chief executive officer, chief financial officer, treasurer or controller of each Loan Party to the effect that such statements shall be were prepared in accordance with GAAP, consistently applied, GAAP and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared are fairly stated in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices)respects.
(c) As soon as practicablewithin 45 days after each June 30 and December 31, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter an operating statement for the four (4) Fiscal Quarters Real Property for the six months ended with such date, in form and level of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detaildetail reasonably acceptable to Administrative Agent;
(d) Promptly within 10 days after the end of each calendar month, (i) a rent roll for the Real Property stating the name of each tenant in occupancy, the suite number(s) occupied by such tenant, the date of such tenant’s lease, the rent and CAM charges payable by such tenant, the amount of any prepaid rents or security deposits held with respect to such tenant, the amounts of any delinquencies in payment by such tenant, and a description of any disputes or defaults in connection with such tenant’s lease or occupancy, and (ii) a statement of leasing activity with respect to all unoccupied space, in form and level of detail reasonably acceptable to Administrative Agent;
(e) promptly upon the request by the of Administrative Agent or any LenderAgent, copies of any detailed audit reports, management letters reports or recommendations submitted to Borrower (or its board of directors) to Parent by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, Parent or Parent’s Subsidiaries or any audit of any of themthereof;
(ef) Promptly after the same are availableas soon as practicable, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Business Days after a Senior Responsible Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action the Borrower is taking or proposes to take with respect thereto;
(ig) Promptly promptly upon a Senior Responsible Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 100,000 or more in excess of the amount thereof that is fully covered by insurance, insurance (subject to deductibles permitted hereunder) or (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 100,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are is taking or propose proposes to take with respect thereto;
(h) proof of payment of all taxes, including taxes on Real Property, upon the request of Administrative Agent;
(i) within ten (10) days after filing, but in any event within nine months after the end of each Fiscal Year (commencing with the Fiscal Year ended July 31, 2010), copies of each Borrower’s and Parent’s state and federal income tax returns, together with all schedules for the tax period ended in such Fiscal Year;
(j) any event, occurrence or condition that has had, or is reasonably likely to have, a Material Adverse Effect upon Borrower or Parent; and
(jk) Such such other data and information regarding the Borrower’s or Parent’s Subsidiaries and their businesses as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsAgent.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation (other than indemnity obligations for which no claim has been made) remains unpaidunpaid or unperformed, or any portion of any of the Commitments remains in force, the Borrower shall, unless the Administrative Agent (with the written approval of the Requisite LendersMajority Banks) otherwise consentsconsents in writing, deliver to the Banks and the Administrative Agent, at the Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet sheets of the Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and Quarter, (ii) consolidated statements of incomeincome and (iii) consolidated statements of cash flow, operations in each case described in clauses (ii) and cash flows (iii) of this Section 7.1(a) of the Borrower and its Subsidiaries for such Fiscal Quarter, Quarter and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by a Senior Officer of the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows changes in financial position of the Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than any requirement for footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred (100) 90 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet sheets of the Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and Year, (ii) consolidated statements of income, operations, stockholders’ equity income of the Borrower and its Subsidiaries for such Fiscal Year and (iii) consolidated statements of cash flows, in each case flow of the Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently appliedGenerally Accepted Accounting Principles, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP Xxxxx & Xxxxx or other independent public accountants of recognized national standing selected by Borrower and reasonably satisfactory to the Requisite LendersBorrower, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of the Borrower or any of its Subsidiariesgenerally, and copies of all annual, regular, periodic periodic, current and special reports and registration statements which the Borrower or any a Subsidiary of its Subsidiaries the Borrower may file or be required to file with the Securities and Exchange Commission under Section Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fd) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming awarePromptly, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of the Borrower becomes aware obtains actual knowledge of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action the Borrower or any of its Subsidiaries is taking or proposes to take with respect thereto;
(ie) Promptly upon a Senior Officer of Borrower becoming aware that of the occurrence of any ERISA Event defined in clauses (i) any Person has commenced a legal proceeding with respect through (vii) or (xi) of the definition thereof involving Title IV of ERISA that could reasonably be expected to a claim against result in material liability to the Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract ERISA Event that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may could reasonably be expected to result in a Material Adverse Effect, a written notice describing specifying the pertinent facts relating thereto and nature thereof, what action the Borrower and/or or any of its applicable Subsidiaries are ERISA Affiliates has taken, is taking or propose proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto;
(f) With reasonable promptness, copies of (a) each Schedule SB (Actuarial Information) to the annual report, if any (Form 5500 Series), filed by the Borrower or any of its Current ERISA Affiliates with the Internal Revenue Service with respect to each Pension Plan following the Administrative Agent’s request; (b) all notices received by the Borrower or any of its Current ERISA Affiliates from the sponsor of a Multiemployer Plan concerning an ERISA Event defined in clauses (i) through (vii) or (xi) of the definition thereof following the receipt thereof; and (c) such other documents or governmental reports or filings relating to any Employee Benefit Plan as the Administrative Agent shall reasonably request;
(g) promptly following any reasonable request therefor, provide information and documentation reasonably requested by the Administrative Agent or any Bank for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and the Beneficial Ownership Regulation; and
(jh) Such other data and material information related to the Borrower’s ability to meet its Obligations hereunder as from time to time may be reasonably requested by the Administrative Agent or the Requisite LendersMajority Banks. Information Documents required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with or furnished to the Securities and Exchange Commission) Commission and available to the public may be delivered electronically and if so delivered), shall be deemed to have been delivered for all purposes of this Agreement on the date (ai) on which the Borrower posts such documents, or provides notice to Lenders that such information has been posted a link thereto on the Borrower’s website on the Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, Schedule 13.7; or (bii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website (including, without limitation, the Platform; provided that (i) Company shall notify XXXXX System), if any, to which each Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent). The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender (by telecopier Bank shall be solely responsible for requesting delivery to it or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) maintaining its copies of such documents.
Appears in 1 contract
Samples: Bridge Credit Agreement (Amgen Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 50 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidated and consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidated and consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer of Borrower or his or her designated representative as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred 45 days after the end of each Fiscal Quarter, a Pricing Certificate setting forth a calculation of the Leverage Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations in the case of the fourth Fiscal Quarter in any Fiscal Year shall be based on the preliminary unaudited financial statements of Borrower and its Subsidiaries for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Leverage Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(100c) As soon as practicable, and in any event within 120 days after the end of each Fiscal Year, the consolidated and consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidated and consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers Pricewaterhouse Coopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations exceptions as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention scope of such accountants the audit nor to any other qualification or exception determined by the Requisite Lenders in the course of such examination that would cause them their good faith business judgment to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver be adverse to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation interests of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).Lenders;
(cd) As soon as practicable, and in any event not later than sixty thirty (6030) days subsequent prior to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next succeeding Fiscal Year thereafter through Year, including for the Maturity Datefirst such Fiscal Year, projected consolidated balance sheets, statements of operations and statements of cash flow, forecast assumptions, and a budget for Capital Expenditures, and, for the second such Fiscal Year, projected consolidated condensed balance sheets and statements of operations and cash flows of Borrower and its Subsidiaries, forecast assumptions, and a budget for Capital Expenditures, all in reasonable detail;
(de) As soon as practicable, and in any event not later than forty-five (45) days after the end of each month, an aging of Borrower's accounts receivable in form and substance reasonably acceptable to the Administrative Agent;
(f) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) reports by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(eg) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fh) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower with any Governmental Agency, but excluding such reports or documents as are filed with any Governmental Agency as part of Borrower, 's ordinary course transactions with any Governmental Agency;
(gi) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hj) As soon as practicable, and in any event within two five (25) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(ik) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 3,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 1,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 1,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 3,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are is taking or propose proposes to take with respect thereto; and
(jl) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (, to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed reasonably available to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments Commitment remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) [Intentionally Omitted];
(b) [Intentionally Omitted];
(c) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations income and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(id) As soon as practicable, and in any event within one hundred (100) 90 days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity income and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP Arthxx Andexxxx XXX or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lendersstanding, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations exceptions as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention scope of such accountants the audit nor to any other qualification or exception determined by the Requisite Lenders in the course of such examination that would cause them their good faith business judgment to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver be adverse to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation interests of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;Lenders; 66
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, Borrower with any Governmental Agency; provided that neither Borrower nor any of its Subsidiaries shall be obligated to provide any information that is "classified" under applicable Laws;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five ten (510) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 5,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 5,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 5,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 5,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are is taking or propose proposes to take with respect thereto;
(j) Promptly upon a Senior Officer becoming aware of a change in the credit rating given by S&P or Moodx'x xx Borrower's long term senior unsecured non-credit enhanced debt, written notice thereof; and
(jk) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company neither Borrower nor any of its Subsidiaries shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of be obligated to provide any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsinformation that is "classified" under applicable Laws.
Appears in 1 contract
Samples: Revolving Loan Agreement (Usec Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation (other than indemnity obligations for which no claim has been made) remains unpaidunpaid or unperformed, or any portion of any of the Commitments Commitment remains in force, Borrower the Company shall, unless the Administrative Agent (with the written approval of the Requisite LendersMajority Banks) otherwise consents, at Borrower’s sole expenseconsents in writing, deliver to the Banks and the Administrative Agent for distribution by it to Agent, at the Lenders, a sufficient number of copies for all of the Lenders of the followingCompany’s sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet sheets of Borrower the Company and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and Quarter, (ii) consolidated statements of incomeincome and (iii) consolidated statements of cash flow, operations in each case described in clauses (ii) and cash flows (iii) of this Section 7.1(a) of the Company and its Subsidiaries for such Fiscal Quarter, Quarter and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by a Senior Officer of the president or chief financial officer of Borrower Company as fairly presenting the financial condition, results of operations and cash flows changes in financial position of Borrower the Company and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than any requirement for footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred (100) 90 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet sheets of Borrower the Company and its Subsidiaries as at the end of such Fiscal Year and the consolidating and Year, (ii) consolidated statements of income, operations, stockholders’ equity income of the Company and its Subsidiaries for such Fiscal Year and (iii) consolidated statements of cash flows, in each case flow of Borrower the Company and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently appliedGenerally Accepted Accounting Principles, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP Ernst & Young or other independent public accountants of recognized national standing selected by Borrower and reasonably satisfactory to the Requisite LendersCompany, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of Borrower or any of its Subsidiariesthe Company generally, and copies of all annual, regular, periodic periodic, current and special reports and registration statements which Borrower the Company or any a Subsidiary of its Subsidiaries the Company may file or be required to file with the Securities and Exchange Commission under Section Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fd) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming awarePromptly, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware the Company obtains actual knowledge of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower the Company or any of its Subsidiaries is taking or proposes to take with respect thereto;
(ie) Promptly upon a Senior Officer of Borrower becoming aware that of the occurrence of any ERISA Event defined in clauses (i) any Person has commenced a legal proceeding with respect through (vii) or (xi) of the definition thereof involving Title IV of ERISA that could reasonably be expected to a claim against Borrower result in material liability to the Company or its Subsidiaries or any of its Subsidiaries ERISA Event that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may could reasonably be expected to result in a Material Adverse Effect, a written notice describing specifying the pertinent facts relating thereto and nature thereof, what action Borrower and/or the Company or any of its applicable Subsidiaries are ERISA Affiliates has taken, is taking or propose proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto;
(f) With reasonable promptness, copies of (a) each Schedule SB (Actuarial Information) to the annual report, if any (Form 5500 Series), filed by the Company or any of its Current ERISA Affiliates with the Internal Revenue Service with respect to each Pension Plan following the Administrative Agent’s request; (b) all notices received by the Company or any of its Current ERISA Affiliates from the sponsor of a Multiemployer Plan to which a Current ERISA Affiliate contributes concerning an ERISA Event defined in clauses (i) through (vii) or (xi) of the definition thereof following the receipt thereof; and (c) such other documents or governmental reports or filings relating to any Employee Benefit Plan as the Administrative Agent shall reasonably request;
(g) promptly following any reasonable request therefor, provide information and documentation reasonably requested by the Administrative Agent or any Bank for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and the Beneficial Ownership Regulation; and
(jh) Such other data and material information related to any Borrower’s ability to meet its Obligations hereunder as from time to time may be reasonably requested by the Administrative Agent or the Requisite LendersMajority Banks. Information Documents required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with or furnished to the Securities and Exchange Commission) Commission and available to the public may be delivered electronically and if so delivered), shall be deemed to have been delivered for all purposes of this Agreement on the date (ai) on which Borrower the Company posts such documents, or provides notice to Lenders that such information has been posted a link thereto on Borrowerthe Company’s website on the Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, Schedule 13.7; or (bii) on which such documents are posted on Borrowerthe Company’s behalf on IntraLinks/IntraAgency or another relevant website (including, without limitation, the Platform; provided that (i) Company shall notify XXXXX System), if any, to which each Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent). The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request for delivery, and each Lender (by telecopier Bank shall be solely responsible for requesting delivery to it or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) maintaining its copies of such documents.
Appears in 1 contract
Samples: Credit Agreement (Amgen Inc)
Financial and Business Information. So long as any Advance remains unpaid, unpaid or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and quarterly unaudited consolidated financial statements, including a consolidated balance sheet sheet, income statement and statement of Borrower and its Subsidiaries cash flows of the Consolidated Group as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or Parent's chief financial officer of Borrower or chief accounting officer as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries the Consolidated Group in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-year end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter, a Compliance Certificate as of the last day of such Fiscal Quarter, providing reasonable detail as to the calculation thereof;
(c) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter, statements of operating income for such Fiscal Quarter and Fiscal Year to date for each of the Subject Properties and a complete Project roster, each in such detail as the Administrative Agent may reasonably require
(d) All written information provided to shareholders of Parent;
(e) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and annual audited consolidated financial statements, including a consolidated balance sheet sheet, income statement and statement of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries the Consolidated Group for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial statements shall be accompanied certified by a report of PricewaterhouseCoopers LLP the Parent's chief financial officer or chief accounting officer and by KPMG or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite Lenders, which report financial statements shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations exceptions as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention scope of such accountants the audit nor to any other qualification or exception determined by the Requisite Lenders in the course of such examination that would cause them their good faith business judgment to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver be adverse to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation interests of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).Lenders;
(cf) As Upon request by the Administrative Agent, as soon as practicable, and in any event not later than sixty (60) days subsequent to before the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flowConsolidated Group, all in reasonable detail;
(dg) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Parent by independent accountants in connection with the accounts or books of Borrower, Parent or any other member of its Subsidiariesthe Consolidated Group, or any audit of any of them;
(eh) Promptly after the same are available, and in any event within five ten (510) Banking Days days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fi) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other material report or other document that was filed by Borrower, the Consolidated Group with any Governmental Agency;
(gj) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-non exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower the Consolidated Group is taking or proposes propose to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hk) As soon as practicable, and in any event within two five (25) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower the Consolidated Group is taking or proposes propose to take with respect thereto;
(il) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Loan Party that is $250,000 5,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 5,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 5,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries Loan Party or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Loan Party under a contract (that is not a credit agreement or material lease with respect to a claim of lease) in excess of $250,000 5,000,000 or which otherwise may reasonably be expected to result in would constitute a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries the Loan Parties are taking or propose to take with respect thereto;
(m) [Intentionally Omitted.]
(n) Not later than fifty (50) days after the end of each fiscal quarter of the Consolidated Group (including the fourth fiscal quarter in each year), a list (which may be included in the Compliance Certificates) setting forth the following information with respect to each new Subsidiary or Controlled Entity of any of the Loan Parties: (i) the name, structure and ownership of the Subsidiary or Controlled Entity, (ii) a description of the property owned by such Subsidiary or Controlled Entity, and (iii) such other information as the Administrative Agent may reasonably request;
(o) Simultaneously with the delivery of the financial statements referred to in Section 7.1(e) above (if such information is not otherwise included in the financial statements or other information presented to the Lenders pursuant to this Section 7.1), a statement (which may be included in the Compliance Certificates) listing (i) the Projects owned by the Consolidated Group (or in which the Consolidated Group owns an interest) and stating the location thereof, the date acquired and the acquisition cost, (ii) the Indebtedness of the Consolidated Group, which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non recourse, and (iii) the Projects of the Consolidated Group which are Unstabilized Projects and providing a brief summary of the status of such development; and
(jp) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Secured Term Loan Agreement (BioMed Realty Trust Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver Deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the followingBank:
(ia) As soon as practicable, and in any event within fifty Within forty-five (5045) days after the end close of each Fiscal Quarter ending March 31of the first three fiscal quarters of each fiscal year of the Parent (or, June 30 and September 30 if earlier, within three (commencing 3) days after the Parent files its Quarterly Report on Form 10-Q for with the Fiscal Quarter ending June 30, 2005Securities and Exchange Commission for such fiscal quarter), the consolidating and a consolidated balance sheet of Borrower the Parent and its Subsidiaries as at of the end close of such Fiscal Quarter and the consolidating fiscal quarter and consolidated statements of income, operations income and cash flows for such Fiscal Quarter, the Parent and its Subsidiaries for the fiscal quarter then ended and for that portion of the Fiscal Year ended with such Fiscal Quarterfiscal year then ended, together with a statement of Stockholders’ Equity as of including the last day of such Fiscal Quarternotes to each, all in reasonable detaildetail setting forth in comparative form the corresponding figures for the preceding fiscal year, all prepared in accordance with GAAP applied on a basis consistent with that of the preceding period or containing disclosure of the effect on the financial position or results of operation of any change in the application of accounting principles and practices during the period, subject only to audit and year-end adjustments, and certified by the Parent’s president or chief financial officer to be true and accurate;
(iib) Within one hundred twenty (120) days after the close of the fiscal year of the Parent (or, if earlier, within three (3) days after the Parent files its Annual Report on 10-K with the Securities and Exchange Commission for such fiscal year), an audited consolidated balance sheet of the Parent and its Subsidiaries as of the close of such fiscal year and audited consolidated statements of income and cash flows for the Parent and its Subsidiaries for the fiscal year then ended, including the notes to each, all in reasonable detail setting forth in comparative form the corresponding figures for the preceding fiscal year, prepared by an independent certified public accountant reasonably acceptable to the Bank, in accordance with GAAP applied on a basis consistent with that of the preceding year or containing disclosure of the effect on the financial position or results of operation of any change in the application of accounting principles and practices during the year, and accompanied by a report thereon by such certified public accountant containing an opinion that is not qualified with respect to scope limitations imposed by the Parent or its Subsidiaries or with respect to accounting principles followed by the Parent or its Subsidiaries not in accordance with GAAP;
(c) Concurrently with the delivery of the financial statements described in subsection (b) above, a certificate addressed to the Bank from the independent certified public accountant that in making its audit of the financial statements of the Parent and its Subsidiaries, it obtained no knowledge of the occurrence or existence of any Default or Event of Default under this Agreement, or specifying the nature and period of existence of any such Default or Event of Default; provided, however, that such accountant shall not be certified liable to anyone by reason of its failure to obtain knowledge of any such Default or Event of Default that would not be disclosed in the course of an audit conducted in accordance with generally accepted auditing standards;
(d) Concurrently with the delivery of the financial statements described in subsections (a) and (b) above, a Compliance Certificate with respect to the period covered by the financial statements being delivered thereunder, executed by the president or chief financial officer of Borrower as fairly presenting the Borrower, together with a Covenant Compliance Worksheet reflecting the computation of the financial condition, results covenants set forth in Article VI as of operations and cash flows the last thy of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
(i) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered period covered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of themstatements;
(e) Promptly after the same are available, and in Prompt notice of any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;Material Adverse Change; and
(f) Promptly after request by LenderWithin a reasonable time, subject to confidentiality requirements of any Governmental Agencyupon the Bank’s request, copies of any such other report or other document that was filed by Borrowerinformation about the property, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, financial condition and in any event within five (5) Banking Days after becoming aware, operations of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof Parent and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of as the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise Bank may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsrequest.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaidThe Parent, the Company and Care GP shall deliver (or any other Obligation remains unpaid, or any portion cause to be delivered) to each holder of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the followingNote that is an Institutional Investor:
(ia) As Quarterly Statements — as soon as practicableavailable, and but in any event within fifty five (505) days after Business Days following the end date the Parent is required to file its Quarterly Report on Form 10-Q (the “Form 10-Q”) with the SEC (without giving effect to any extension of each Fiscal Quarter ending March 31such due date, June 30 and September 30 whether obtained by filing the notification permitted by Rule 12b-25 or any successor provision thereto or otherwise) (commencing with the Fiscal Quarter ending fiscal quarter ended June 30, 20052016), the consolidating and an unaudited consolidated balance sheet of Borrower and its Subsidiaries the Consolidated Group as at the end of such Fiscal Quarter fiscal quarter, and the consolidating and related unaudited consolidated statements of incomeincome or operations for such fiscal quarter and for the portion of the Parent’s fiscal year then ended, operations and the related unaudited statements of stockholders’ equity and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year Parent’s fiscal year then ended, setting forth in each case (commencing with the fiscal quarter ended with such Fiscal QuarterMarch 31, together with a statement of Stockholders’ Equity as 2016) in comparative form the figures for the corresponding fiscal quarter of the last day previous fiscal year and the corresponding portion of such Fiscal Quarterthe previous fiscal year, as applicable, all in reasonable detail, (ii) such financial consolidated statements shall to be certified by a Responsible Officer of the president or chief financial officer of Borrower Parent as fairly presenting in all material respects the financial condition, results of operations operations, equity and cash flows of Borrower and its Subsidiaries the Consolidated Group in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periodsGAAP, subject only to normal year-year end accruals audit adjustments and audit adjustments.the absence of footnotes;
(ib) As Annual Statements — as soon as practicableavailable, and but in any event within one hundred five (1005) days after Business Days following the end date the Parent is required to file its Annual Report on Form 10-K (the “Form 10-K”) with the SEC (without giving effect to any extension of each Fiscal Yearsuch due date, whether obtained by filing the consolidating and notification permitted by Rule 12b-25 or any successor provision thereto or otherwise) (commencing with the fiscal year ending December 31, 2016), a consolidated balance sheet of Borrower and its Subsidiaries the Consolidated Group as at the end of such Fiscal Year fiscal year, and the consolidating and related consolidated statements of income, income or operations, stockholders’ equity and cash flowsflows for such fiscal year, setting forth in each case of Borrower and its Subsidiaries in comparative form the figures for such Fiscal Yearthe previous fiscal year, all in reasonable detail. Such financial statements shall be detail and prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall to be audited and accompanied by a report and opinion of PricewaterhouseCoopers LLP or other an independent certified public accountants accountant of nationally recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lendersstanding, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and applicable securities laws and shall not be subject to any qualifications “going concern” or exceptions, and which report shall specifically disclose like qualification or exception or any changes discovered by such accountants in Borrower’s qualification or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making exception as to the examination pursuant to generally accepted auditing standards necessary for the certification scope of such audit (provided, that to the extent the components of such consolidated financial statements and such reportrelating to a prior fiscal period are separately audited by different independent public accounting firms, such accountants have obtained no knowledge the audit report of any Default then existing or, if, in the opinion such accounting firm may contain a qualification or exception as to scope of such accountants, any consolidated financial statements as they relate to such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practicescomponents).;
(c) As Annual Forecast — as soon as practicableavailable, but in no event later than the date the statements referred to in clause (b) above are delivered, an annual forecast of the Consolidated Group for the then-current fiscal year, prepared in a manner and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) form of the Securities Exchange Act of 1934, as amended, and not otherwise required to be forecast delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (Purchasers prior to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof of Closing or at another website identified in such notice and accessible other form as is reasonably acceptable to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.Required Holders;
Appears in 1 contract
Samples: Note Purchase Agreement (Care Capital Properties, Inc.)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, The Obligors shall deliver to the Administrative Agent for distribution by it to the Lenders, each Purchaser and each holder of a sufficient number of copies for all of the Lenders of the followingNote that is an Institutional Investor:
(ia) As soon as practicableQuarterly Statements — within 45 days (Commencing with the fiscal quarter ended September 30, 2024 and with respect to the fiscal quarter endingended September 30, 2024, March 31, 2021,2025 and June 30, 2025, within 60 days after the end of such fiscal quarter) of Parent Company, and in any event thereafter, within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31quarterly fiscal period inquarter for each of the first three financial fiscal year of Holdingsquarters (other than the last quarterly fiscal period of each such fiscal year)fourth fiscal quarter) of Parent Company, June 30 and September 30 duplicate copies of,
(commencing with the Fiscal Quarter ending June 30, 2005), the consolidating and i) a consolidated balance sheet of Borrower HoldingsParent Company and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and quarter, and
(ii) consolidated statements of income, operations changes in shareholders’ equity and cash flows of HoldingsParent Company and its Subsidiaries, for such Fiscal Quarter, quarter and (in the case of the second and third quarters) for the portion of the Fiscal Year ended fiscal year ending with such Fiscal Quarterquarter, together with a statement of Stockholders’ Equity as of setting forth in each case in comparative form the last day of such Fiscal Quarterfigures for the corresponding periods in the previous fiscal year, all in reasonable detail, (ii) such prepared in accordance with GAAP applicable to quarterly financial statements shall be generally, and certified by the president or chief financial officer of Borrower a Senior Financial Officer as fairly presenting presenting, in all material respects, the financial condition, position of the companies being reported on and their results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periodsflows, subject only to normal changes resulting from year-end accruals and audit adjustments.;
(ib) As soon as practicableAnnual Statements — Commencing with the fiscal year ended December 31, 2024 and in any event with respect to such fiscal year, within one hundred 120150 days (100) or 90 days at all times after a Qualified IPO)after the end of such fiscal year of Parent Company and thereafter, within 90 days after the end of each Fiscal Yearfiscal year of HoldingsParent Company, the consolidating and duplicate copies of
(i) a consolidated balance sheet of Borrower HoldingsParent Company and its Subsidiaries as at the end of such Fiscal Year and the consolidating and year, and
(ii) consolidated statements of income, operations, stockholderschanges in shareholders’ equity and cash flows, in each case flows of Borrower HoldingsParent Company and its Subsidiaries for such Fiscal Yearyear, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail. Such financial statements shall be , prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by an opinion thereon (without a report “going concern” or similar qualification or exception and without any qualification or exception as to the scope of PricewaterhouseCoopers LLP the audit on which such opinion is based, other than a “going concern” explanatory note or other qualification resulting from (i) the Lineage Logistics, LLC Note Purchase Agreement maturity of the loans under any Indebtedness of any Obligor or Subsidiary permitted hereunder occurring within one year from the time such opinion is delivered or (ii) anticipated (but not actual) covenant non-compliance hereunder or under Indebtedness of any Obligor or Subsidiary permitted hereunder) of independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lendersnational standing, which report opinion shall be state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards as at such datestandards, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by that such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) audit provides a reasonable basis for such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, opinion in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detailcircumstances;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any Letter of Credit remains outstanding, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite LendersBanks) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the LendersBanks, a sufficient number of copies for all of the Lenders Banks of the following:
(ia) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and quarterly unaudited consolidated financial statements, including a consolidated balance sheet sheet, income statement and statement of Borrower and its Subsidiaries cash flows of the Consolidated Group as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or Parent’s chief financial officer of Borrower or chief accounting officer as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries the Consolidated Group in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-year end accruals and audit adjustments.;
(b) As soon as practicable, and in any event within (i) fifty (50) days after the end of each Fiscal Quarter other than the fourth Fiscal Quarter in any Fiscal Year and (ii) one hundred (100) days after the end of such fourth Fiscal Quarter, a Compliance Certificate as of the last day of such Fiscal Quarter, providing reasonable detail as to the calculation thereof;
(c) As soon as practicable, and in any event within (i) fifty (50) days after the end of each Fiscal Quarter other than the fourth Fiscal Quarter in any Fiscal Year and (ii) one hundred (100) days after the end of such fourth Fiscal Quarter, statements of operating income for such Fiscal Quarter and Fiscal Year to date for each of the Income-Producing Projects in the Unencumbered Pool and a complete Project roster, each in such detail as the Administrative Agent may reasonably require
(d) All written information provided to shareholders of Parent;
(e) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and annual audited consolidated financial statements, including a consolidated balance sheet sheet, income statement and statement of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries the Consolidated Group for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial statements shall be accompanied certified by a report of PricewaterhouseCoopers LLP the Parent’s chief financial officer or chief accounting officer and by KPMG or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite LendersBanks, which report financial statements shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations exceptions as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention scope of such accountants the audit nor to any other qualification or exception determined by the Requisite Banks in the course of such examination that would cause them their good faith business judgment to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver be adverse to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation interests of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).Banks;
(cf) As Upon request by the Administrative Agent, as soon as practicable, and in any event not later than sixty (60) days subsequent to before the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flowConsolidated Group, all in reasonable detail;
(dg) Promptly after request by the Administrative Agent or any LenderBank, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Parent by independent accountants in connection with the accounts or books of Borrower, Parent or any other member of its Subsidiariesthe Consolidated Group, or any audit of any of them;
(eh) Promptly after the same are available, and in any event within five ten (510) Banking Days days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders Banks pursuant to other provisions of this Section 7.1;
(fi) Promptly after request by Lender, subject to confidentiality requirements of the Administrative Agent or any Governmental AgencyBank, copies of any other material report or other document that was filed by Borrower, the Consolidated Group with any Governmental Agency;
(gj) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-non exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower the Consolidated Group is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hk) As soon as practicable, and in any event within two five (25) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower the Consolidated Group is taking or proposes propose to take with respect thereto;
(il) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Loan Party that is $250,000 5,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 5,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 5,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries Loan Party or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Loan Party under a contract (that is not a credit agreement or material lease with respect to a claim of lease) in excess of $250,000 5,000,000 or which otherwise may reasonably be expected to result in would constitute a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries the Loan Parties are taking or propose to take with respect thereto;
(m) [Intentionally Omitted.]
(n) Not later than fifty (50) days after the end of each fiscal quarter of the Consolidated Group (including the fourth fiscal quarter in each year), a list (which may be included in the Compliance Certificates) setting forth the following information with respect to each new Subsidiary or Controlled Entity of any of the Loan Parties: (i) the name, structure and ownership of the Subsidiary or Controlled Entity, (ii) a description of the property owned by such Subsidiary or Controlled Entity, and (iii) such other information as the Administrative Agent may reasonably request;
(o) Simultaneously with the delivery of the financial statements referred to in Section 7.1(e) above (if such information is not otherwise included in the financial statements or other information presented to the Banks pursuant to this Section 7.1), a statement (which may be included in the Compliance Certificates) listing (i) the Projects owned by the Consolidated Group (or in which the Consolidated Group owns an interest) and stating the location thereof, the date acquired and the acquisition cost (with respect to each new Project), (ii) the Indebtedness of the Consolidated Group, which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non recourse, and (iii) the Projects of the Consolidated Group which are Unstabilized Projects and providing a brief summary of the status of such development;
(p) When and as required by Section 2.11, the information regarding each Qualified Unencumbered Project, as more particularly described in Section 2.11;
(q) When and as required by Section 5.17(c), the information regarding the Unencumbered Pool, as more particularly described in Section 5.17(c); and
(jr) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Bank (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsBanks.
Appears in 1 contract
Samples: Unsecured Credit Agreement (BioMed Realty Trust Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaidunpaid or unperformed, or any portion of any of the Commitments a Commitment remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite LendersMajority Banks) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to and the LendersBanks, a sufficient number of copies for all of the Lenders of the followingat Borrower's sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 60 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such each Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and (ii) the consolidating (in accordance with past consolidating practices of Borrower) balance sheets and statements of operations as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred (100) 120 days after the end of each Fiscal YearYear (including the Fiscal Year ending June 30, 1995), (i) the consolidating and consolidated con solidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ shareholders' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year and (ii) consolidating (in accordance with past consolidating practices of Borrower) balance sheets and statements of operations, in each case as at and for the Fiscal Year, all in reasonable detail. Such In the case of clause (i), such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP KPMG Peat Marwick or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite LendersMajority Banks, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, exceptions as to the scope of the audit nor to any other qualification or exception reasonably determined by the Majority Banks in their good faith business judgment to be adverse to the interests of the Banks. Such accountants' report and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report opinion shall be accompanied by a certificate stating that, in making the examination pursuant to generally gener ally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any -68- Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.136.11 through 6.15, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement. In the case of clause (ii), and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants financial statements shall be required to disclose any material changes discovered certified by a Senior Officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such accountants in the then current account management process (including the determination of returns date and reserves, inventory management practices, and accounts receivable management practices).for such periods;
(c) As soon as practicable, and in any event not later than sixty (60) within 60 days subsequent to after the commencement of each Fiscal YearYear (including the Fiscal Year beginning July 1, 1995), a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding a strategic plan by Fiscal Year thereafter through for the Maturity Datethree Fiscal Years following the budgeted year, including for the Fiscal Year just commenced, projected consolidated balance sheets, statements of operations and statements of cash flow and, for the next three succeeding Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flow, of Borrower and its Subsidiaries, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any LenderBank, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Borrower by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended, 1934 and not otherwise required to be delivered to the Lenders Banks pursuant to other provisions of this Section 7.1;
(f) Promptly Except as prohibited by Law, promptly after request by Lender, subject to confidentiality requirements of the Agent or any Governmental AgencyBank, copies of any other report or other document that was filed by Borrower, Borrower or any of its Subsidiaries with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable "report able event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the -69- Code) involving in connection with any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower or any of its Subsidiaries is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is or any of its Subsidiaries are taking or proposes propose to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 500,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a written credit agreement or material lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries orSubsidiaries, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 500,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, or (iv) any labor union has notified Borrower of its intent to strike Borrower or any of its Subsidiaries on a date certain and such strike would involve more than 100 employees of Borrower and its Subsidiaries, a written notice describing the pertinent facts relating thereto and what action Borrower and/or or its applicable Subsidiaries are taking or propose to take with respect thereto;
(j) No later than 7 days prior to its creation, written notice of any Lien to be created pursuant to Section 6.8(e) or (f), together with a reasonably detailed description of such Lien and the Indebtedness to be secured thereby; and
(jk) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Bank (through the Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsMajority Banks.
Appears in 1 contract
Financial and Business Information. So long as any Advance Loan remains unpaid, or any other Obligation remains unpaidunpaid or unperformed, or any portion of any of the Commitments Commitment remains in forceoutstanding, Borrower Borrowers shall, in addition to complying with the requirements of Section 8.3 of this Agreement, and unless the Administrative Agent (with the written approval of the Requisite Lenders) Banks otherwise consents, at Borrower’s sole expenseconsent in writing, deliver to the Administrative Agent for distribution by it to the LendersAgent, a sufficient number of copies for all of the Lenders of the followingat Borrowers' sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 30 days after the end of each Fiscal Quarter ending March 31fiscal month of Borrowers, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30, 2005), the consolidating and i) consolidated balance sheet sheets of Borrower Borrowers and its their Subsidiaries as at the end of such Fiscal Quarter and month, setting forth in comparative form the consolidating and consolidated corresponding figures as at the end of the corresponding month of their preceding fiscal year, (ii) Club operating statements of incomeeach Club as at the end of such month, operations (iii) consolidated income statements of Borrowers and cash flows their Subsidiaries for such Fiscal Quarter, month and for the portion of the Fiscal Year their fiscal year ended with such Fiscal Quartermonth, together setting forth in comparative form the corresponding figures for the corresponding periods of their preceding fiscal year and (iv) consolidated cash flow statements of Borrowers and their Subsidiaries for the portion of their fiscal year ended with a statement such month, setting forth in comparative form the corresponding figures for the corresponding periods of Stockholders’ Equity as of the last day of such Fiscal Quartertheir preceding fiscal year, all in reasonable detail, (ii) such . The preceding financial statements shall be certified by the president or chief financial officer a Responsible Official of a Borrower as fairly presenting the financial condition, results of operations and cash flows flow of Borrower Borrowers and its their Subsidiaries in accordance with GAAP (other than footnote disclosures)generally accepted accounting principles, consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
(ib) As soon as practicable, and in any event within one hundred (100) 45 days after the end of each Fiscal Yearquarter of Borrowers (including the last quarter of each fiscal year, provided that with respect to such last quarter the consolidating and financial statements required hereby may be in preliminary form, prior to year-end audit adjustments), (i) consolidated balance sheet sheets of Borrower Borrowers and its their Subsidiaries as at the end of such Fiscal Year and quarter, setting forth in comparative form the consolidating and corresponding figures as at the end of the corresponding quarter of their preceding fiscal year, (ii) consolidated income statements of income, operations, stockholders’ equity Borrowers and cash flows, in each case of Borrower and its their Subsidiaries for such Fiscal Yearquarter and for the portion of their fiscal year ended with such quarter, setting forth in comparative form the corresponding figures for the corresponding periods of their preceding fiscal year and (iii) consolidated cash flow statements of Borrowers and their Subsidiaries for the portion of their fiscal year ended with such quarter, setting forth in comparative form the corresponding figures for the corresponding periods of their preceding fiscal year, all in reasonable detail. The preceding financial statements shall be certified by a Responsible Official of a Borrower as fairly presenting the financial condition, results of operations and cash flow of Borrowers and their Subsidiaries in accordance with generally accepted accounting principles, consistently applied, as at such date and for such periods, subject only to normal year-end audit adjustments.
(c) As soon as practicable, and in any event within 90 days after the close of each fiscal year of Borrowers, (i) consolidated balance sheets of Borrowers and their Subsidiaries as at the end of such fiscal year, setting forth in comparative form the corresponding figures as at the end of their preceding fiscal year, and (ii) consolidated income statements and cash flow statements of Borrowers and their Subsidiaries for such fiscal year, setting forth in comparative form the corresponding figures for their previous fiscal year, all in reasonable detail. Such financial balance sheets and statements shall be prepared in accordance with GAAPgenerally accepted accounting principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and unqualified opinion of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower Borrowers and reasonably satisfactory to the Requisite LendersBanks, which report and opinion shall be prepared in accordance with generally accepted auditing standards principles as at such date, and shall not be subject only to any such qualifications or exceptions, and which exceptions as are acceptable to the Requisite Banks in the exercise of their reasonable discretion. Such accountants' report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report and opinion shall be accompanied by (1) a copy of any "management letter" provided by such accountants to Borrowers, and (2) a certificate stating that, in making the examination pursuant to generally accepted auditing standards audit necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing Default, or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s setting forth the financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.136.13 through 6.20, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreementinclusive, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation as of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation date of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices)balance sheet.
(cd) As soon as practicable, and in any event not later than sixty (60) within 30 days subsequent to after the commencement end of each Fiscal Yearmonth of Borrowers, a budget and projection Certificate of a Responsible Official of a Borrower and its Subsidiaries setting forth (i) a schedule of Capital Expenditures made by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year Borrowers and/or their Subsidiaries during such month, and (ii) on an annual basis during their fiscal year to date, separately for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;Club.
(e) Promptly after the same are availableAs soon as practicable, and in any event within five 30 days after the start of each fiscal year of Borrowers, a monthly budget for the then started fiscal year including, without limiting the generality of the foregoing, monthly projected consolidated balance sheets, income statements and cash flow statements of Borrowers and their Subsidiaries and individual Club operating statements, all in reasonable detail.
(5f) Banking Days Within 30 days following the end of each month, a membership information report for each Club and in the aggregate in the form now prepared by Borrowers on a monthly basis, reflecting no less than the immediately preceding consecutive six months, and reflecting the number of members, the number of new memberships sold and Attrition, and supplemented by such additional information as Agent may request.
(g) Within 30 days after filing the close of each fiscal year of Borrowers, Borrowers' budget of capital expenditures for capital improvements, replacements and other related purposes for the following fiscal year.
(h) Within the earlier of 5 days after (i) the same are filed with the Securities and Exchange CommissionCommission ("SEC") or (ii) the same are required to be filed with the SEC, subject to allowable SEC extensions, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of Borrower or any of its SubsidiariesBorrowers, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Borrowers may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any similar or corresponding Governmental Agency, copies of any other report Agency or other document that was filed by Borrower, with any Governmental Agency;securities exchange.
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 Within 5 days after receipt of ERISA, but excluding such events as to which the PBGC has copies of all correspondence and notices received by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by Borrowers from the Internal Revenue Service with ("IRS") relating to any adverse action or determination by the IRS in respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if of any Borrower's tax status under the anticipated liability is less than $100,000;Internal Revenue Code.
(hj) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes Immediately upon becoming aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, a written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking Borrowers or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable their Subsidiaries are taking or propose to take with respect thereto; and.
(jk) Promptly upon request by Agent or the Requisite Banks, copies of any detailed audit reports submitted to Borrowers or any of their Subsidiaries by independent accountants in connection with the accounts or books of Borrowers or any of their Subsidiaries, or any audit of any of them.
(l) Promptly after request by Agent or the Requisite Banks, copies of any report or other document filed by Borrowers or any of their Subsidiaries with any Governmental Agency.
(m) Promptly upon becoming aware that any Person asserts a claim against Borrowers or any of their Subsidiaries in excess of $500,000 and that such Person has given notice or taken any other action with respect to a claimed default or event of default, a written notice specifying the notice given or action taken by such Person and the nature of the claimed default or event of default and what action Borrowers or their Subsidiaries are taking or propose to take with respect thereto.
(n) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsBanks.
Appears in 1 contract
Samples: Loan Agreement (Sports Club Co Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaidunpaid or unperformed, or any portion of any of the Commitments a Commitment remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite LendersMajority Banks) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to and the LendersBanks, a sufficient number of copies for all of the Lenders of the followingat Borrower's sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 60 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such each Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and (ii) the consolidating (in accordance with past consolidating practices of Borrower) balance sheets and statements of operations as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-year- end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred (100) 120 days after the end of each Fiscal YearYear (including the Fiscal Year ending June 30, 2000), (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ shareholders' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year and (ii) consolidating (in accordance with past consolidating practices of Borrower) balance sheets and statements of operations, in each case as at and for the Fiscal Year, all in reasonable detail. Such In the case of clause (i), such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP KPMG Peat Marwick or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite LendersMajority Banks, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, exceptions as to the scope of the audit nor to any other qualification or exception reasonably determined by the Majority Banks in their good faith business judgment to be adverse to the interests of the Banks. Such accountants' report and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report opinion shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants account- ants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.136.11 through 6.15, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement. In the case of clause (ii), and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants financial statements shall be required to disclose any material changes discovered certified by a Senior Officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such accountants in the then current account management process (including the determination of returns date and reserves, inventory management practices, and accounts receivable management practices).for such periods;
(c) As soon as practicable, and in any event not later than sixty (60) within 90 days subsequent to after the commencement of each Fiscal YearYear (including the Fiscal Year beginning July 1, 2000), a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding a strategic plan by Fiscal Year thereafter through for the Maturity Datethree Fiscal Years following the budgeted year, including for the Fiscal Year just commenced, projected consolidated balance sheets, statements of operations and statements of cash flow and, for the next three succeeding Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flow, of Borrower and its Subsidiaries, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any LenderBank, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Borrower by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section Sections 13 or 15(d15( d) of the Securities Exchange Act of 1934, as amended, 1934 and not otherwise required to be delivered to the Lenders Banks pursuant to other provisions of this Section 7.1;
(f) Promptly Except as prohibited by Law, promptly after request by Lender, subject to confidentiality requirements of the Administrative Agent or any Governmental AgencyBank, copies of any other report or other document that was filed by Borrower, Borrower or any of its Subsidiaries with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable "report- able event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited -70- transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving in connection with any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower or any of its Subsidiaries is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is or any of its Subsidiaries are taking or proposes propose to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 1,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a written credit agreement or material lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries orSubsidiaries, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 1,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, or (iv) any labor union has notified Borrower of its intent to strike Borrower or any of its Subsidiaries on a date certain and such strike would involve more than 100 employees of Borrower and its Subsidiaries, a written notice describing the pertinent facts relating thereto and what action Borrower and/or or its applicable Subsidiaries are taking or propose to take with respect thereto;
(j) No later than 7 days prior to its creation, written notice of any Lien to be created pursuant to Section 6.8( e), together with a reasonably detailed description of such Lien and the Indebtedness to be secured thereby; and
(jk) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Bank (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsMajority Banks.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments Commitment remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidated and consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidated and consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred 45 days after the end of each Fiscal Quarter, a Pricing Certificate setting forth a calculation of the Leverage Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations in the case of the fourth Fiscal Quarter in any Fiscal Year shall be based on the preliminary unaudited financial statements of Borrower and its Subsidiaries for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Leverage Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(100c) As soon as practicable, and in any event within 90 days after the end of each Fiscal Year, the consolidated and consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidated and consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal -72- 79 Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers Deloitte & Touche LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Lenders in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Lenders. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13through 6.17, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cd) As soon as practicable, and in any event not later than sixty (60) days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next two succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows of Borrower and its Subsi- diaries, all in reasonable detail;
(de) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) reports by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(ef) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fg) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, Borrower with any Governmental Agency;
(gh) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hi) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(ij) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 1,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 1,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 1,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 1,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are is taking or propose proposes to take with respect thereto; and
(jk) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaidunpaid or unperformed, or any portion of any of the Commitments Commitment remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite LendersBanks) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the LendersBanks one (1) copy (or, in the case of any document which is commercially printed and bound, a sufficient number of copies for all of the Lenders Banks) of the following:
(ia) As soon as practicable, and in any event within fifty (50) 60 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005), in any Fiscal Year) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and Quarter, the consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred (100) 105 days after the end of each Fiscal Year, Year the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and xxxxxxx- dated statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite LendersBanks, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Banks in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Banks. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 6.6 and 6.136.7, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiariesgenerally, and copies of all annual, regular, periodic and special reports and registration statements (other than the exhibits thereto) which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders Banks pursuant to other provisions of this Section 7.1;
(fd) Promptly after request by Lender, subject to confidentiality requirements of the Administrative Agent or any Governmental AgencyBank, copies of any other report or other document that was filed by Borrower, Borrower or any of the Restricted Subsidiaries with any Governmental Agency;
(ge) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five ten (510) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving in connection with any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower or any of the Restricted Subsidiaries is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hf) As soon as practicable, and in any event within two three (23) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Restricted Subsidiaries are taking or propose to take with respect thereto;
(g) On each day upon which Borrower issues commercial paper, a Certificate of a Responsible Official, in a form and in detail reasonably acceptable to the Administrative Agent, setting forth the amount of commercial paper so issued and the maturity date thereof and, giving effect thereto, the aggregate principal amount of the Commercial Paper Outstandings;
(h) Within three Banking Days of Borrower's receiving notice of any change in the Senior Debt Rating, written notice of such change;
(i) Prior to March 1 of each year, a calculation of the Leverage Ratio as of the last day of the immediately preceding Fiscal Year, and of any resulting Incremental Margin, certified as true and correct by a Senior Officer of Borrower; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Bank (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsBanks.
Appears in 1 contract
Samples: Loan Agreement (Mirage Resorts Inc)
Financial and Business Information. So long as any Advance Revolving Loan remains unpaidunpaid or Letter of Credit or Set-Aside Letter remains outstanding, or any other Obligation remains unpaid, unpaid or unperformed (other than any contingent indemnity obligations under any of the Loan Documents) or any portion of any of the Revolving Commitments remains in forceoutstanding, the Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) Majority Lenders otherwise consents, at Borrower’s sole expenseconsent in writing, deliver to the Administrative Agent for distribution by it to and each Lender, at the Lenders, a sufficient number of copies for all of the Lenders of the followingBorrower's sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 30 days after the end of each Fiscal Quarter ending March 31fiscal month of the Borrower other than December and January, June 30 within 45 days after the end of each December, and September 30 within 36-days after the end of each January, (commencing with the Fiscal Quarter ending June 30, 2005), the consolidating and i) a consolidated balance sheet of Borrower and its Subsidiaries Presxxx Xxxaware as at the end of such Fiscal Quarter month, setting forth in comparative form the corresponding figures as at the end of the preceding month and the consolidating and (ii) a consolidated statements statement of income, operations and cash flows of Presxxx Xxxaware for such Fiscal Quarter, month and for the portion of the Fiscal Year its fiscal year ended with such Fiscal Quartermonth, together with a statement of Stockholders’ Equity as of setting forth in comparative form the last day of such Fiscal Quartercorresponding figures for the preceding month, all in reasonable detail. The preceding financial statements shall include, (ii) such on a project-by-project basis, a breakdown of Real Estate Inventory costs. In addition, the preceding financial statements shall be certified by a Responsible Official of the president or chief financial officer of Borrower as fairly presenting the financial condition, condition and results of operations and cash flows of Borrower and its Subsidiaries Presxxx Xxxaware in accordance with GAAP (other than footnote disclosures)GAAP, consistently applied, applied as at such date and for such periods, subject only to normal year-end accruals and audit adjustments., provided that such financial statements need not contain all footnotes and disclosures required by generally accepted accounting principles;
(ib) As soon as practicable, and in any event within one hundred (100) 120 days after the end close of each Fiscal Yearfiscal year of the Borrower, the consolidating and (i) a consolidated balance sheet of Borrower and its Subsidiaries Presxxx Xxxaware as at the end of such Fiscal Year fiscal year, and the consolidating (ii) a consolidated statement of operations and consolidated statements of income, operations, stockholders’ equity and cash flows, changes in each case financial position of Borrower and its Subsidiaries 89 Presxxx Xxxaware for such Fiscal Yearfiscal year, all in reasonable detail. Such financial balance sheet and statements shall be prepared in accordance with GAAP, consistently applied, applied and such consolidated financial statements shall be accompanied by a report and opinion of PricewaterhouseCoopers Ernst & Young LLP or other independent public accountants of recognized standing selected by the Borrower and reasonably satisfactory to the Requisite Majority Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptionslimitations except as approved by the Majority Lenders, which approval shall not be unreasonably withheld. Such accountants' report and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report opinion shall be accompanied by a certificate separate report stating that, in making during their examination of the examination pursuant financial statements of Presxxx Xxxaware, nothing came to generally accepted auditing standards necessary for the certification attention of such financial statements and such report, such accountants have obtained no that would give them knowledge of the existence of any Default then existing hereunder, or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s setting forth the financial calculations under Section 8.17 as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation date of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).balance sheet;
(c) As soon as practicable, and in any event not later than sixty (60) within 60 days subsequent to after the commencement end of each Fiscal Yearof the Borrower's second and fourth fiscal quarters, commencing June 30, 1998, a quarterly budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters then started twelve month period, including, without limiting the generality of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Dateforegoing, quarterly projected balance sheets, statements of operations of the Borrower and quarterly projected cash flow statements of cash flowthe Borrower, all in reasonable detail;
(d) After the request of the Agent or any Lender, with respect to any or all projects of the Borrower as specifically requested, a detailed variance report that includes, without limitation, original and current estimates of budget costs, line item budget information, selling prices, gross margins, percentage of completion and estimated completion date, and a narrative explanation of indicated budget variances;
(e) As soon as practicable, and in any event within five Banking Days after the end of each week, a weekly sales report of the Borrower for the week most recently ended in form and substance reasonably satisfactory to the Majority Lenders;
(f) As soon as practicable, and in any event within 30 days after the end of each quarter, a quarterly cash flow report of the Borrower for the quarter most recently ended;
(g) As soon as practicable, and in any event within 30 days after the end of each fiscal month of the Borrower other than December and January, within 45 days after the end of each December, and within 36 days after the end of each January, a Borrowing Base Certificate for the Borrowing Base (together with supporting documentation and data) as of the last day of the immediately
(h) As soon as practicable, and in any event within 45 days after the commencement of each fiscal quarter of the Borrower, a Certificate of Responsible Official (i) stating that the Borrower is in compliance with Section 7.14 (if applicable) and setting forth the amount of forward commitments from acceptable lending institutions maintained by the Borrower as at the beginning of such fiscal quarter of the Borrower and (ii) setting forth computations showing, in detail satisfactory to the Majority Lenders, whether the Borrower was in compliance with its obligations pursuant to Sections 8.16 and 8.17;
(i) Promptly after request by the Administrative Agent or any LenderAgent, copies of any detailed audit reports, management letters reports or recommendations submitted to the Borrower (or any of its board of directors) Subsidiaries by independent accountants in connection with the accounts or books of Borrower, the Borrower or any of its Subsidiaries, such Subsidiary or any audit of any of them;
(ej) Promptly after request by the Agent, copies of any report or other document filed by the Borrower or any of its Subsidiaries with any Governmental Agency;
(k) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of Borrower or any of its Subsidiariesthe Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1any similar or corresponding Governmental Agency or with any securities exchange;
(fl) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and but in any event within five (5Banking Days) Banking Days after becoming aware, upon any of the occurrence of any President, the Chief Financial Officer, the Vice President/Finance, the Vice President/Controller or the General Counsel (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2officers holding similar positions) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes becoming aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, a written notice again specifying the nature and period of existence thereof and specifying what action the Borrower is taking or proposes to take with respect thereto;
(im) Promptly upon a Senior Officer any corporate officer of the Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against the Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof $1,000,000 not arising under a contract that is not fully covered by insurance, insurance or (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a written credit agreement or material lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of the Borrower or any of its Subsidiaries or, or (iii) any Person has commenced a legal proceeding with respect to a claim against the 91 Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 500,000 or which otherwise may reasonably be expected to result in a Material Adverse Effectmaterial adverse effect on the Borrower or such Subsidiary, a written notice describing the pertinent facts relating thereto and what action the Borrower and/or its applicable Subsidiaries are or such Subsidiary is taking or propose proposes to take with respect thereto;
(n) Promptly (but in any event within five Banking Days) upon becoming aware of any strike or other material labor dispute or that work has ceased on any project of the Borrower or any of its Subsidiaries for more than thirty consecutive days, written notice of such strike or dispute or such cessation and of the pertinent facts relating thereto and what action the Borrower or such Subsidiary is taking or proposes to take with respect to the commencement of such work; and promptly (but in any event within ten days) upon becoming aware of the termination of employment of the President or any Senior Vice President of the Borrower (or any future officers of the Borrower who have substantially similar responsibilities as such officers), written notice of such termination and what action the Borrower is taking in response thereto;
(o) Promptly (but in any event within five Banking Days) upon becoming aware of any casualty loss affecting any Property of the Borrower or any of its Subsidiaries in excess of $500,000, or any other event that may have a material adverse effect on the financial condition or operations of the Borrower, written notice of the same and the pertinent facts relating thereto;
(p) Not later than ten Banking Days prior to the issuance of any Set-Aside Letter hereunder, a detailed budget for the improvements covered by such Set-Aside Letter; not later than seven Banking Days prior to the disbursement of any Revolving Loan the proceeds of which are intended, in part, to fund costs incurred in connection with the construction of such improvements, a detailed report regarding the status of the construction of such improvements; and not later than three Banking Days prior to the disbursement of any such Revolving Loan, a detailed summary of the costs incurred in connection with the construction of such improvements;
(q) [deleted];
(r) As soon as practicable, but in no event less than thirty Banking Days' written notice to the Agent of the Borrower's or any of its Subsidiaries' acquisition of any new Improved Land, Raw Land or Housing;
(s) Such other reports and information, on at least a monthly basis (or at such other intervals as the Agent may deem appropriate), as the 92 Agent may require to assist the Agent in its computation of the Borrowing Base; and
(jt) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Majority Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance Loan remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower Day Runner shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s Day Runner's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the followingeach Lender:
(ia) As soon as practicable, and in any event within fifty (50) 55 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and consolidated balance sheet of Borrower Day Runner and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer of Borrower Day Runner as fairly presenting in all material respects the financial condition, results of operations and cash flows of Borrower Day Runner and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred 55 days after the end of each Fiscal Quarter
(100i) a Pricing Certificate setting forth a calculation of the Funded Debt Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations in the case of the fourth Fiscal Quarter in any Fiscal Year shall be based on the preliminary unaudited financial statements of such Borrower and its Subsidiaries for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Funded Debt Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof and (ii) a certificate of a Senior Officer of Day Runner stating that the representations and warranties in Article 4 hereof are true and correct in all material respects as of the date of such certificate and that no Event of Default has occurred and is continuing or, if an Event of Default has occurred and is continuing, a statement as to the nature thereof and the action that Day Runner has taken and proposes to take with respect thereto;
(c) As soon as practicable, and in any event within 100 days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower Day Runner and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower Day Runner and its Subsidiaries for such Fiscal Year, with all related consolidating financial statements prepared by Day Runner, all in reasonable detail. Such consolidated financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers Deloitte & Touche LLP or other independent public accountants of recognized standing selected by Borrower Day Runner and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such . Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Event of Default then existing relating to the breach by any Borrower of any of Sections 6.1, 6.2, 6.6, 6.9, 6.10, 6.12, 6.13, 6.14 and 6.16 of this Agreement or, if, in the opinion of such accountants, any such Event of Default shall exist, stating the nature and status of such Event of Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cd) As soon as practicable, and in any event not later than sixty within one hundred (60100) days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next four succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected consolidated balance sheets, statements of operations and statements of cash flowflow and, for succeeding Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows of each Borrower and its Subsidiaries, all in reasonable detaildetail (it being understood that any projections provided hereunder shall be were prepared in good faith and will represent management's opinion of the projected financial performance of the Borrowers and their respective Subsidiaries based upon the information available to the Borrowers at the time so furnished);
(de) Promptly after request by the Administrative Agent or any Lenderthe Requisite Lenders, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of any Borrower by independent accountants in connection with the accounts or books of Borrower, such Borrower or any of its Subsidiaries, or any audit of any of them;
(ei) Promptly As soon as practicable, and in any event within 55 days after the end of each Fiscal Quarter, a copy of the Form 10-Q for such Fiscal Quarter filed with the Securities and Exchange Commission by any Borrower; (ii) as soon as practicable, and in any event within 100 days after the end of each Fiscal Quarter a copy of the Form 10-K for such Fiscal Quarter filed with the Securities and Exchange Commission by any Borrower; and (iii) promptly after the same are available, and in any event within five two (52) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which any Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to the other provisions of this Section 7.1;
(fg) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, any Borrower with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent (except in the case of the collateral reports required by clause (e) below, which shall be delivered to the Collateral Agent) for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 50 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidated and consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidated and consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer of Borrower or his or her designated representative as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) Intentionally Omitted;
(c) As soon as practicable, and in any event within one hundred (100) 120 days after the end of each Fiscal Year, the consolidated and consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidated and consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations exceptions as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention scope of such accountants the audit nor to any other qualification or exception determined by the Requisite Lenders in the course of such examination that would cause them their good faith business judgment to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver be adverse to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation interests of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).Lenders;
(cd) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement February 15th of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that following Fiscal Year (the "First Year") and (ii) on an annual basis by Fiscal Year for each the next succeeding Fiscal Year thereafter through (the Maturity Date"Second Year"), including for the First Year, projected consolidated balance sheets, statements of operations and statements of cash flowflow of Borrower and its Subsidiaries, forecast assumptions, and a budget for Capital Expenditures, and, for the Second Year, projected consolidated condensed balance sheets and statements of operations and cash flows of Borrower and its Subsidiaries, forecast assumptions, and a budget for Capital Expenditures, all in reasonable detail;
(de) As soon as practicable, and in any event not later than 30 days after, and as of, the end of each month, an aging of Borrower's Accounts, by Account Debtor and total and otherwise in form and substance reasonably acceptable to the Collateral Agent (an "Accounts Receivable Aging Report"), and as soon as practicable, and in any event not later than 30 days after the end of each Fiscal Quarter of Borrower, a reconciliation report to reconcile Accounts aged balances to the Accounts listed on the general ledger of Borrower (an "Accounts Receivable Reconciliation Report"), provided, that for any Account that is (i) more than 90 days past invoice date and (ii) in an amount in excess of $100,000, Borrower shall provide the Administrative Agent with a report detailing the business location of the applicable Account Debtor, the type of Account (e.g., domestic commercial, domestic governmental, foreign commercial, etc.) and any other information that the Administrative Agent or the Collateral Agent may require, in its reasonable discretion;
(f) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) reports by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(eg) Promptly after the same are available, and in any event within five (5) 5 Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fh) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower with any Governmental Agency, but excluding such reports or documents as are filed with any Governmental Agency as part of Borrower, 's ordinary course transactions with any Governmental Agency;
(gi) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hj) As soon as practicable, and in any event within two five (25) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(ik) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 3,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 1,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 1,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 3,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are is taking or propose proposes to take with respect thereto; and;
(jl) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, the Collateral Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (, to the extent reasonably available to Borrower;
(m) As soon as practicable, and in any event within 60 days after the end of each fiscal quarter of Immeon, the balance sheet of Immeon as at the end of such documents are included fiscal quarter of Immeon and the statements of operations and cash flows for such fiscal quarter of Immeon, and the portion of the fiscal year of Immeon ended with such fiscal quarter of Immeon, all in materials otherwise filed with the Securities and Exchange Commission) reasonable detail. Such financial statements shall be deemed certified by the financial officer of Immeon or his or her designated representative as fairly presenting the financial condition, results of operations and cash flows of Immeon in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to have been delivered on normal year-end accruals and audit adjustments; and
(n) As soon as practicable, and in any event not later than December 31st of each fiscal year of Immeon, a budget and projection by fiscal quarter of Immeon for the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified next succeeding fiscal year of Immeon, including projected balance sheets, statements of operations and statements of cash flow, forecast assumptions, and a budget for Capital Expenditures all in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsreasonable detail.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation (other than inchoate indemnity obligations) remains unpaid, or any portion of any of the Commitments Revolving Commitment remains in force, Borrower Representative shall, unless the Administrative Agent (with the written approval of the Requisite Lenders or, if required by Section 12.2, all of the Lenders) otherwise consents, at Borrower’s Borrowers’ sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty forty-five (5045) days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such and as filed with the Securities and Exchange Commission; and the company-prepared quarterly income statement, balance sheet and operating cash flow statement of ResMed and SMI. Such financial statements shall be certified by the president or chief financial officer or controller of Borrower Representative as fairly presenting in all material respects the financial condition, results of operations and cash flows of Borrower the applicable Credit Parties and its their Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred forty-five (10045) days after the end of each Fiscal Quarter, a Pricing Certificate setting forth a calculation of the Leverage Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations in the case of the fourth Fiscal Quarter in any Fiscal Year shall be based on the preliminary unaudited financial statements of Parent and its Subsidiaries for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Leverage Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(c) As soon as practicable, and in any event within ninety-five (95) days after the end of each Fiscal Year, the consolidated and consolidating and consolidated balance sheet of Borrower the Parent and its Subsidiaries as at the end of such Fiscal Year and the consolidated and consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower Parent and its Subsidiaries for such Fiscal Year, all in reasonable detail, and as filed with the Securities and Exchange Commission. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers KPMG LLP or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations exceptions as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention scope of such accountants the audit nor to any other qualification or exception determined by the Requisite Lenders in the course of such examination that would cause them their good faith business judgment to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver be adverse to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation interests of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices)Lenders.
(cd) As soon as practicable, and in any event not later than sixty thirty (6030) days subsequent prior to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity DateYear, including projected consolidated balance sheets, statements of operations operations, forecast assumptions, and statements of cash flowa budget for Capital Expenditures, all in reasonable detail;
(de) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them[Intentionally Omitted];
(ef) Promptly after Parent agrees to provide Administrative Agent (and any requesting Lender) access to the same are availableelectronic notification system employed by Parent so that each will receive electronic notification, and in any event within five (5) Banking Days after filing when filed with the Securities and Exchange Commission, of and access to copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower Parent and filed or any of its Subsidiariesbe required to file with the Securities and Exchange Commission, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fg) Promptly after request by Lender, subject the Administrative Agent or any Lender (Borrowers agreeing hereby to confidentiality requirements of inform the Administrative Agent promptly upon any Governmental Agencysuch filing), copies of any other report or other document that was filed by Borrower, any Credit Party or any Significant Domestic Subsidiary with any Governmental Agency;
(gh) Promptly upon a Senior Officer of Borrower, any Credit Party or any Significant Subsidiary becoming aware, and in any event within five ten (510) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, in each case which is reasonably expected to cause a Material Adverse Effect, telephonic notice specifying the nature thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower such Party is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hi) As soon as practicable, and in any event within two five (25) Banking Days after a Senior Officer of Borrower any Credit Party or any Significant Subsidiary becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is the Credit Parties are taking or proposes propose to take with respect thereto;
(ij) Promptly upon a Senior Officer of Borrower any Credit Party or any Significant Subsidiary becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Credit Party that is $250,000 1,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 1,000,000 or more or any lessor under a lease involving aggregate annual rent of $250,000 1,000,000 or more has asserted a default thereunder on the part of Borrower any Credit Party, or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Credit Party under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 1,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are such Party is taking or propose proposes to take with respect thereto; and
(jk) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance ---------------------------------- remains unpaid, or any other Obligation remains unpaidunpaid or unperformed (other than the obligations referenced in Section 3.18), or any portion of any of the Commitments Commitment remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to and the Lenders, a sufficient number of copies for all of the Lenders of the followingat Borrower's sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31Quarter, June 30 and September 30 (commencing with i) the Fiscal Quarter ending June 30, 2005), the consolidating and consolidated balance sheet sheets of Borrower as at the end of such Fiscal Quarter, (ii) statements of income and its Subsidiaries retained earnings and of cash flow of Borrower as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement and (iii) the statements of Stockholders’ Equity as cash flow of Borrower for such Fiscal Quarter and for the portion of the last day of Fiscal Year ended with such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower as fairly presenting the financial condition, results of operations and changes in financial position or cash flows of Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than any requirement for footnote disclosures), ) consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.adjustments and shall be accompanied by a management narrative description of results of operations;
(ib) As soon as practicable, and in any event within one hundred (100) 90 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet sheets of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated Year, (ii) statements of income, operations, stockholders’ equity income and retained earnings and of cash flows, in each case flows of Borrower for such Fiscal Year, and its Subsidiaries (iii) statements of cash flow of Borrower for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared based on an audit conducted in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report opinion shall be accompanied by a certificate stating that, in making an unqualified opinion without additional explanatory or non-standard wording which the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements Requisite Lenders determine is unacceptable and such report, such accountants have obtained with no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations limitation as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention scope of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).their audit;
(c) Concurrently with the delivery of the financial statements referred to in Sections 8.1(a) and 8.1(b), a written discussion and analysis of the financial condition and results of operations of Borrower in reasonable detail, including in the case of any such report --------- delivered in connection with the financial statements referred to in Section 8.1(b), an explanation of any material variance from operational results or balance sheet items contained in projections previously delivered to the Lenders;
(d) As soon as practicable, and in any event not later than sixty within 20 days after the end of each calendar month, a monthly revenue report showing revenues for the prior calendar month associated with each gaming category, occupancy percentage, and average hotel room rental rates experienced by the Mohegan Sun during such monthly period;
(60e) As soon as practicable, and in any event within 90 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) projected financial statements by Fiscal Quarter Year for each of the four (4) three Fiscal Quarters of Years immediately subsequent to that Fiscal Year and (ii) on an annual basis for Year, including, in each succeeding Fiscal Year thereafter through the Maturity Datecase, projected balance sheets, --------- statements of operations income and retained earnings and statements of cash flowflow of Borrower, all in reasonable detaildetail and in any event to include (i) projected Distributions to be made to the Tribe by Borrower and (ii) projected Capital Expenditures;
(df) Promptly after request following receipt by the Administrative Agent or any LenderBorrower, copies of any detailed audit reports, management letters reports or recommendations submitted to Borrower (or its board of directors) the Tribe by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, Borrower or any audit of any of themBorrower;
(eg) Promptly following a filing, copies of any specific report or other document filed by Borrower (or by the Tribe in respect of its gaming operations or any Authority Property) with any Governmental Agency, including without limitation all reports which Borrower is required to file with the National Indian Gaming Commission under 25 C.F.R. Part 514;
(h) Promptly after the same are available, and in any event within five (5) Banking Days after filing with a copy of the Securities and Exchange Commission, copies Form 5500 series report of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action maintained by Borrower is taking or proposes to take as filed with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000for each Fiscal Year;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance ---------------------------------- remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005----- ---- in any Fiscal Year), the consolidated and consolidating and consolidated (by store) balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidated and consolidating and consolidated (by store) statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred 45 days after the end of each Fiscal Quarter, a Pricing Certificate setting forth a calculation of the Funded Debt Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations in the case of the fourth Fiscal Quarter in any Fiscal Year shall be based on the preliminary unaudited financial statements of Borrower and its Subsidiaries for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Funded Debt Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(100c) As soon as practicable, and in any event within 120 days after the end of each Fiscal Year, the consolidated and consolidating and consolidated (by store) balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidated and consolidating and consolidated (by store) statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers Price Waterhouse Coopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations exceptions as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation scope of the foregoing report and (B) audit nor to any other qualification or exception determined by the Requisite Lenders in their good faith business judgment to constitute a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).Material Adverse Effect;
(cd) As soon as practicable, and in any event not later than sixty thirty (6030) days subsequent to before the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next two succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal --------- Year, projected consolidated balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows of Borrower and its Subsidiaries, all in reasonable detail;
(de) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Borrower by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(ef) Promptly after the same (if any) are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;; ---
(fg) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, Borrower with any Governmental Agency;
(gh) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation --------- waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hi) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(ij) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 1,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 5,000,000 or more or has given written notice of a default thereunder on the part of Borrower, (iii) any lessor under a lease involving aggregate rent of $250,000 5,000,000 or more has asserted commenced a legal action claiming a default thereunder on the part of Borrower or any of its Subsidiaries or, (iiiiv) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 1,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are is taking or propose proposes to take with respect thereto; and
(jk) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver Deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the followingBank:
(ia) As soon as practicable, and in any event within fifty Within forty-five (5045) days after the end close of each of the first three Fiscal Quarters of each Fiscal Quarter ending March 31Year of the Borrower, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30, 2005), the consolidating and a consolidated balance sheet of the Borrower and its Subsidiaries as at of the end close of such Fiscal Quarter and the consolidating and consolidated statements of income, operations income and cash flows for such the Borrower and its Subsidiaries for the Fiscal Quarter, Quarter then ended and the for that portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarterthen ended, all in reasonable detaildetail setting forth in comparative form the corresponding figures for the preceding Fiscal Year, all prepared in accordance with GAAP applied on a basis consistent with that of the preceding period or containing disclosure of the effect on the financial position or results of operation of any change in the application of accounting principles and practices during the period, subject only to audit and year-end adjustments, and certified by the Borrower’s president or chief financial officer to be true and accurate;
(iib) Within one hundred twenty (120) days after the close of each Fiscal Year of the Borrower, an audited consolidated balance sheet of the Borrower and its Subsidiaries as of the close of such Fiscal Year and audited consolidated statements of income and cash flows for the Borrower and its Subsidiaries for the Fiscal Year then ended, including the notes to each, all in reasonable detail setting forth in comparative form the corresponding figures for the preceding Fiscal Year, prepared by an independent certified public accountant reasonably acceptable to the Bank, in accordance with GAAP applied on a basis consistent with that of the preceding year or containing disclosure of the effect on the financial position or results of operation of any change in the application of accounting principles and practices during the year, and accompanied by a report thereon by such certified public accountant containing an opinion that is not qualified with respect to scope limitations imposed by the Borrower or its Subsidiaries or with respect to accounting principles followed by the Borrower or its Subsidiaries not in accordance with GAAP;
(c) Within one hundred twenty (120) days after the close of each Fiscal Year of HB Service (beginning with the Fiscal Year ending December 31, 2006), a management-prepared (and audited if an audit is conducted) consolidated balance sheet of HB Service as of the close of such Fiscal Year and management-prepared (and audited if an audit is conducted) consolidated statements of income and cash flows for the HB Service for the Fiscal Year then ended, all in reasonable detail setting forth in comparative form the corresponding figures for the preceding Fiscal Year, and if an audit is conducted, such financial statements shall be prepared by an independent certified public accountant reasonably acceptable to the Bank, in accordance with GAAP applied on a basis consistent with that of the preceding year or containing disclosure of the effect on the financial position or results of operation of any change in the application of accounting principles and practices during the year, and accompanied by a report thereon by such certified public accountant containing an opinion that is not qualified with respect to scope limitations imposed by HB Service or with respect to accounting principles followed by HB Service not in accordance with GAAP;
(d) Concurrently with the delivery of the financial statements described in subsection (b) above, a certificate addressed to the Bank from the independent certified public accountant that in making its audit of the financial statements of the Borrower and its Subsidiaries, it obtained no knowledge of the occurrence or existence of any Default or Event of Default under this Agreement, or specifying the nature and period of existence of any such Default or Event of Default; provided, however, that such accountant shall not be liable to anyone by reason of its failure to obtain knowledge of any such Default or Event of Default that would not be disclosed in the course of an audit conducted in accordance with generally accepted auditing standards;
(e) Concurrently with the delivery of the financial statements described in subsections (a) and (b) above, a Compliance Certificate with respect to the period covered by the financial statements being delivered thereunder, executed by the president or chief financial officer of Borrower as fairly presenting the Borrower, together with a Covenant Compliance Worksheet reflecting the computation of the financial condition, results covenants set forth in Article VI as of operations and cash flows the last day of Borrower and its Subsidiaries in accordance with GAAP the period covered by such financial statements;
(other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
f) On or before the earlier of (i) As soon as practicable, and in any event within one hundred thirty (10030) days after of the end of each Fiscal YearClosing Date and (ii) November 30, the consolidating and 2005, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating December 31, 2004 and consolidated statements of income, operations, stockholders’ equity income and cash flows, in each case of flows for the Borrower and its Subsidiaries for such Fiscal Yearthe two-month period then ended, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied certified by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s president or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such chief financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required officer to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agencytrue and accurate;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence Prompt notice of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, Material Adverse Change; and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicableWithin a reasonable time, upon the Bank’s request, such other information about the property, financial condition and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware operations of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature Borrower and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of as the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise Bank may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsrequest.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower Borrowers shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s Borrowers' sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty 30 days after the end of each calendar month, a consolidated and consolidating (50in accordance with past consolidating practices of Parent) summary statement of operations of Parent and its Subsidiaries for such calendar month, in a form reasonably acceptable to the Administrative Agent, together with a written report as to current operating data and a narrative statement discussing any significant trends reflected therein;
(b) As soon as practicable, and in any event within 60 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with OTHER THAN the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and (ii) the consolidating (in accordance with past consolidating practices of Parent) balance sheets and statements of operations as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower Parent as fairly presenting the financial condition, results of operations and cash flows of Borrower Parent and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ic) As soon as practicable, and in any event within one hundred 45 days after the end of each Fiscal Quarter, a Pricing Certificate setting forth a preliminary calculation of the Parent Leverage Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of Parent and its Subsidiaries for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Parent Leverage Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(100d) As soon as practicable, and in any event within 120 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower Parent and its Subsidiaries for such Fiscal Year and (ii) consolidating (in accordance with past consolidating practices of Parent) balance sheets and statements of operations, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Lenders in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Lenders. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s Parent's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 6.9, 6.10, 7.4, 9.11 and 6.139.12 , have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower Parent in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(ce) As soon as practicable, and in any event not later than sixty (60) within 45 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next four succeeding Fiscal Year thereafter through Years, INCLUDING for the Maturity Datefirst such Fiscal Year, projected consolidated and consolidating balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated and consolidating condensed balance sheets and statements of operations and cash flows, of Parent and its Subsidiaries, all in reasonable detail;
(df) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Parent by independent accountants in connection with the accounts or books of Borrower, Parent or any of its Subsidiaries, or any audit of any of them;
(eg) As soon as practicable, and in any event within 45 days (or, in the case of the fourth Fiscal Quarter in each Fiscal Year, 90 days) after the end of each Fiscal Quarter, a written report, in form and detail reasonably acceptable to the Administrative Agent, with respect to the status of any Expansion Capital Expenditures and New Venture Expenditures then underway;
(h) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.110.1;
(fi) Promptly after the same are available, copies of the Nevada "Regulation 6.090 Report" and "6-A Report", and copies of any written communication to Parent or Borrowers from any Gaming Board advising it of a violation of or non-compliance with any Gaming Law by Parent, any Borrower or any Sibling Guarantor;
(j) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, Borrowers with any Governmental Agency;
(gk) Promptly upon a Senior Officer of Borrower, any Borrower becoming aware, and in any event within five ten (510) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving in connection with any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower Borrowers is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hl) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of any Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is Borrowers are taking or proposes propose to take with respect thereto;
(im) Promptly upon a Senior Officer of any Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against any Borrower or any of its Subsidiaries that is $250,000 10,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 10,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 10,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries orBorrower, (iii) any Person has commenced a legal proceeding with respect to a claim against any Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 10,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, (iv) any labor union has notified any Borrower of its intent to strike such Borrower on a date certain and such strike would involve more than 100 employees of such Borrower or (v) any Gaming Board has indicated its intent to consider or act upon a License Revocation or a fine or penalty of $1,000,000 or more with respect to any Borrower, a written notice describing the pertinent facts relating thereto and what action such Borrower and/or its applicable Subsidiaries are is taking or propose proposes to take with respect thereto; and
(jn) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Reducing Revolving Loan Agreement (Station Casinos Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any Letter of Credit remains outstanding or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, the Domestic Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at the Domestic Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidated and consolidating and consolidated balance sheet of the Domestic Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidated and consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such and with comparisons to the combined results of operations, on a pro forma basis for the same Fiscal Quarter in the prior year and setting forth on a combined and combining basis the results of operations of the Bally Wulxx xxvision of the Domestic Borrower. Such financial statements shall be certified by a Senior Officer of the president or chief financial officer of Domestic Borrower as fairly presenting the financial condition, results of operations and cash flows of the Domestic Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred (100) ninety days after the end of each Fiscal Year, (i) the consolidated and consolidating and consolidated balance sheet of the Domestic Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidated and consolidating and consolidated statements of income, operations, stockholders’ shareholders' equity and cash flows, in each case of the Domestic Borrower and its Subsidiaries for such Fiscal Year, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP one of the five largest public accounting firms in the United States of America or other independent public accountants of recognized standing selected by the Domestic Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Lenders in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Lenders. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing under Sections 6.13 through 6.17 or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed the Domestic Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.136.13 through 6.17, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by the Domestic Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(c) As soon as practicable, and in any event not later than sixty 45 days following the end of the Fiscal Quarter ending on each June 30, a completed Pricing Certificate setting forth the Total Leverage Ratio as of the last day of the that Fiscal Quarter;
(60d) As soon as practicable, and in any event within 45 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next two succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected consolidated balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows, of the Domestic Borrower and its Subsidiaries, all in reasonable detail;
(de) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of the Domestic Borrower by independent accountants in connection with the accounts or books of Borrower, the Domestic Borrower or any of its Subsidiaries, or any audit of any of them;
(ef) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiariesthe Domestic Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Domestic Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1Section;
(fg) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements copies of the Nevada "Regulation 6.090 Report" and "6-A Report";
(h) Promptly after request by the Administrative Agent or any Governmental AgencyLender, copies of any other report or other document that was filed by Borrower, the Domestic Borrower or any of its Subsidiaries with any Governmental AgencyAgency (other than routine applications and reports filed by the Domestic Borrower and its Subsidiaries with any Gaming Board);
(gi) Promptly upon a Senior Officer of Borrower, becoming awareAs soon as practicable, and in any event within five (5) Banking 10 Business Days after becoming aware, a Senior Officer of the Domestic Borrower becomes aware of the occurrence of any material (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving in connection with any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking five Business Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action the Domestic Borrower or any of its Subsidiaries is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hj) As soon as practicable, and in any event within two (2) Banking 2 Business Days after a Senior Officer of the Domestic Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking 2 Business Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking the Borrowers or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable their Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.;
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any Letter of Credit remains outstanding or any other Obligation remains unpaid, or any portion of any of the Commitments Commitment remains in force, Borrower shallBorrower, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with OTHER THAN the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidated and consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidated and consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such and with comparisons to the combined results of operations, on a pro forma basis for the same Fiscal Quarter in the prior year. Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than OTHER THAN footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred (100) 105 days after the end of each Fiscal Year, (i) the consolidated and consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidated and consolidating and consolidated statements of income, operations, stockholders’ shareholders' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP one of the six largest public accounting firms in the United States of America or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Lenders in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Lenders. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 6.11 and 6.136.12, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(c) As soon as practicable, and in any event not later than sixty prior to the last Business Day of each January, April, July and October, a completed Pricing Certificate setting forth the Leverage Ratio as of the last day of the then most recently ended Fiscal Quarter;
(60d) As soon as practicable, and in any event within 45 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next two succeeding Fiscal Year thereafter through Years, INCLUDING for the Maturity Datefirst such Fiscal Year, projected consolidated balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows, of Borrower and its Subsidiaries, all in reasonable detail;
(de) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Borrower by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(ef) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental AgencySection;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested request by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without chargeLender, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) copies of the posting of any such documents Nevada "Regulation 6.090 Report" and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents."6-A Report";
Appears in 1 contract
Samples: Loan Agreement (Anchor Gaming)
Financial and Business Information. So long as any Advance Loan remains unpaid, or any other Obligation remains unpaidunpaid or unperformed, or any portion of any of the Commitments Commitment remains in forceoutstanding, Borrower Borrowers shall, in addition to complying with the requirements of Section 8.3 of this Agreement, and unless the Administrative Agent (with the written approval of the Requisite Lenders) Banks otherwise consents, at Borrower’s sole expenseconsent in writing, deliver to the Administrative Agent for distribution by it to the LendersAgent, a sufficient number of copies for all of the Lenders of the followingat Borrowers' sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 30 days after the end of each Fiscal Quarter ending March 31fiscal month of Borrowers, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30, 2005), the consolidating and i) consolidated balance sheet sheets of Borrower Borrowers and its their Subsidiaries as at the end of such Fiscal Quarter and month, setting forth in comparative form the consolidating and consolidated corresponding figures as at the end of the corresponding month of their preceding fiscal year, (ii) Club operating statements of incomeeach Club as at the end of such month, operations (iii) consolidated income statements of Borrowers and cash flows their Subsidiaries for such Fiscal Quarter, month and for the portion of the Fiscal Year their fiscal year ended with such Fiscal Quartermonth, together setting forth in comparative form the corresponding figures for the corresponding periods of their preceding fiscal year and (iv) consolidated cash flow statements of Borrowers and their Subsidiaries for the portion of their fiscal year ended with a statement such month, setting forth in comparative form the corresponding figures for the corresponding periods of Stockholders’ Equity as of the last day of such Fiscal Quartertheir preceding fiscal year, all in reasonable detail, (ii) such . The preceding financial statements shall be certified by the president or chief financial officer a Responsible Official of a Borrower as fairly presenting the financial condition, results of operations and cash flows flow of Borrower Borrowers and its their Subsidiaries in accordance with GAAP (other than footnote disclosures)generally accepted accounting principles, consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
(ib) As soon as practicable, and in any event within one hundred (100) 45 days after the end of each Fiscal Yearquarter of Borrowers (including the last quarter of each fiscal year, provided that with respect to such last quarter the consolidating and financial statements required hereby may be in preliminary form, prior to year-end audit adjustments), (i) consolidated balance sheet sheets of Borrower Borrowers and its their Subsidiaries as at the end of such Fiscal Year and quarter, setting forth in comparative form the consolidating and corresponding figures as at the end of the corresponding quarter of their preceding fiscal year, (ii) consolidated income statements of income, operations, stockholders’ equity Borrowers and cash flows, in each case of Borrower and its their Subsidiaries for such Fiscal Yearquarter and for the portion of their fiscal year ended with such quarter, setting forth in comparative form the corresponding figures for the corresponding periods of their preceding fiscal year and (iii) consolidated cash flow statements of Borrowers and their Subsidiaries for the portion of their fiscal year ended with such quarter, setting forth in comparative form the corresponding figures for the corresponding periods of their preceding fiscal year, all in reasonable detail. Such The preceding financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied certified by a report Responsible Official of PricewaterhouseCoopers LLP or other independent public accountants a Borrower as fairly presenting the financial condition, results of recognized standing selected by Borrower operations and reasonably satisfactory to the Requisite Lenders, which report shall be prepared cash flow of Borrowers and their Subsidiaries in accordance with generally accepted auditing standards accounting principles, consistently applied, as at such datedate and for such periods, and shall not be subject only to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the normal year-end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices)audit adjustments.
(c) As soon as practicable, and in any event not later than sixty (60) within 90 days subsequent to after the commencement close of each Fiscal Yearfiscal year of Borrowers, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for consolidated balance sheets of Borrowers and their Subsidiaries as at the four (4) Fiscal Quarters end of that Fiscal Year such fiscal year, setting forth in comparative form the corresponding figures as at the end of their preceding fiscal year, and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, consolidated income statements and cash flow statements of operations Borrowers and statements of cash flowtheir Subsidiaries for such fiscal year, setting forth in comparative form the corresponding figures for their previous fiscal year, all in reasonable detail;. Such balance sheets and statements shall be prepared in accordance with generally accepted accounting principles, consistently applied, and such consolidated balance sheet and consolidated statements shall be accompanied by a report and unqualified opinion of independent public accountants of recognized standing selected by Borrowers and reasonably satisfactory to the Requisite Banks, which report and opinion shall be prepared in accordance with generally accepted auditing principles as at such date, and shall be subject only to such qualifications and exceptions as are acceptable to the Requisite Banks in the exercise of their reasonable discretion.
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are availableAs soon as practicable, and in any event within five 30 days after the end of each month of Borrowers, a Certificate of a Responsible Official of a Borrower setting forth a schedule of 41 Capital Expenditures made by Borrowers and/or their Subsidiaries during such month, and during their fiscal year to date, separately for each Club.
(5e) Banking Days As soon as practicable, and in any event within 30 days after filing the start of each fiscal year of Borrowers, a monthly budget for the then started fiscal year including, without limiting the generality of the foregoing, monthly projected consolidated balance sheets, income statements and cash flow statements of Borrowers and their Subsidiaries and individual Club operating statements, all in reasonable detail.
(f) Within 30 days following the end of each month, a membership information report for each Club and in the aggregate in the form now prepared by Borrowers on a monthly basis, reflecting no less than the immediately preceding consecutive six months, and reflecting the number of members, the number of new memberships sold and the gross reduction in number of memberships, and supplemented by such additional information as Agent may request.
(g) Within 30 days after the close of each fiscal year of Borrowers, Borrowers' budget of capital expenditures for capital improvements, replacements and other related purposes for the following fiscal year.
(h) Within the earlier of 5 days after (i) the same are filed with the Securities and Exchange CommissionCommission ("SEC") or (ii) the same are required to be filed with the SEC, subject to allowable SEC extensions, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of Borrower or any of its SubsidiariesBorrowers, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Borrowers may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any similar or corresponding Governmental Agency, copies of any other report Agency or other document that was filed by Borrower, with any Governmental Agency;securities exchange.
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 Within 5 days after receipt of ERISA, but excluding such events as to which the PBGC has copies of all correspondence and notices received by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by Borrowers from the Internal Revenue Service with ("IRS") relating to any adverse action or determination by the IRS in respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if of any Borrower's tax status under the anticipated liability is less than $100,000;Internal Revenue Code.
(hj) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes Immediately upon becoming aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, a written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking Borrowers or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable their Subsidiaries are taking or propose to take with respect thereto; and.
(jk) Promptly upon request by Agent or the Requisite Banks, copies of any detailed audit reports submitted to Borrowers or any of their Subsidiaries by independent accountants in connection with the accounts or books of Borrowers or any of their Subsidiaries, or any audit of any of them.
(l) Promptly after request by Agent or the Requisite Banks, copies of any report or other document filed by Borrowers or any of their Subsidiaries with any Governmental Agency.
(m) Promptly upon becoming aware that any Person asserts a claim against Borrowers or any of their Subsidiaries in excess of $500,000 and that such Person has given notice or taken any other action with respect to a claimed default or event of default, a written notice specifying the notice given or action taken by such Person and the nature of the claimed default or event of default and what action Borrowers or their Subsidiaries are taking or propose to take with respect thereto.
(n) As soon as practicable, and in any event within 45 days after the end of each fiscal quarter of Borrowers, a project development status report in form and substance acceptable to Agent and Banks, which shall include, at a minimum, a timetable for architectural and construction design, permitting, construction milestones, as may be available, as well as an estimated date for completion. Such report also shall include the budget as originally approved by the Board of Directors 42 of the applicable Borrower or Subsidiary and by Banks, as well as any material modifications that have been approved by Banks or which may require such approval.
(o) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsBanks.
Appears in 1 contract
Samples: Loan Agreement (Sports Club Co Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments Commitment remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidated and consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidated and consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred 45 days after the end of each Fiscal Quarter, a Pricing Certificate setting forth a calculation of the Leverage Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations in the case of the fourth Fiscal Quarter in any Fiscal Year shall be based on the preliminary unaudited financial statements of Borrower and its Subsidiaries for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Leverage Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(100c) As soon as practicable, and in any event within 90 days after the end of each Fiscal Year, the consolidated and consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidated and consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in 77 accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers Deloitte & Touche LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Lenders in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Lenders. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13through 6.17, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cd) As soon as practicable, and in any event not later than sixty (60) days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next two succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows of Borrower and its Subsidiaries, all in reasonable detail;
(de) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) reports by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(ef) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;which
(fg) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, Borrower with any Governmental Agency;
(gh) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hi) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(ij) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 1,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 1,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 1,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 1,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.Adverse
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments Commitment remains in force, Borrower the Borrowers shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s the Borrowers' sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each fiscal quarter (OTHER THAN the fourth fiscal quarter in any Fiscal Quarter ending March 31, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30, 2005Year), the consolidated and consolidating and consolidated balance sheet of Borrower the Parent and its Subsidiaries as at the end of such Fiscal Quarter fiscal quarter and the consolidated and consolidating and consolidated statements of income, operations income and cash flows for such Fiscal Quarterfiscal quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarterfiscal quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer of Borrower the Parent as fairly presenting the financial condition, results of operations and cash flows of Borrower the Parent and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred 45 days after the end of each fiscal quarter, a Pricing Certificate setting forth a calculation of the Leverage Ratio as of the last day of such fiscal quarter, and providing reasonable detail as to the calculation thereof, which calculations in the case of the fourth fiscal quarter in any Fiscal Year shall be based on the preliminary unaudited financial statements of the Parent and its Subsidiaries for such fiscal quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Leverage Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(100c) As soon as practicable, and in any event within 90 days after the end of each Fiscal Year, the consolidated and consolidating and consolidated balance sheet of Borrower the Parent and its Subsidiaries as at the end of such Fiscal Year and the consolidated and consolidating and consolidated statements of incomeearnings, operations, changes in stockholders’ ' equity and cash flows, in each case of Borrower the Parent and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP KPMG or such other independent public accountants of recognized standing selected by Borrower the Parent and reasonably satisfactory to the Requisite LendersAdministrative Agent, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Lenders in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Lenders. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s the Borrowers' financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 6.12, 6.13, 6.14, 6.16, and 6.136.19, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower the Borrowers in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cd) As soon as practicable, and in any event not later than sixty (60) days subsequent to after the commencement of each Fiscal Year, a copy of the annual consolidated operating budget and projection of Borrower with respect to Parent and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that such Fiscal Year and (ii) on an annual basis for each succeeding subsequent Fiscal Year thereafter through during the Maturity Date, projected balance sheets, statements term of operations and statements of cash flow, all in reasonable detailthis Agreement;
(de) Promptly after reasonable request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) reports by independent accountants in connection with the accounts or books of Borrower, the Parent or any of its Subsidiaries, or any audit of any of them;
(ef) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, the Parent and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries the Parent may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fg) Promptly after reasonable request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, the Parent or any other Borrower with any Governmental Agency;
(gh) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding EXCLUDING such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action the applicable Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hi) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is the Borrowers are taking or proposes propose to take with respect thereto;
(ij) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against any Borrower or any of its Subsidiaries that is $250,000 1,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 1,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 1,000,000 or more has asserted a default thereunder on the part of any Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against any Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 1,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action the applicable Borrower and/or its applicable Subsidiaries are is taking or propose proposes to take with respect thereto; and
(jk) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver Deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
Bank: (ia) As soon as practicable, and in any event within fifty Within forty-five (5045) days after the end close of each of the first three Fiscal Quarters of each Fiscal Quarter ending March 31Year of the Borrower, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30, 2005), the consolidating and a consolidated balance sheet of the Borrower and its Subsidiaries as at of the end close of such Fiscal Quarter and the consolidating and consolidated statements of income, operations income and cash flows for such the Borrower and its Subsidiaries for the Fiscal Quarter, Quarter then ended and the for that portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarterthen ended, all in reasonable detaildetail setting forth in comparative form the corresponding figures for the preceding Fiscal Year, (ii) such all prepared in accordance with GAAP applied on a basis consistent with that of the preceding period or containing disclosure of the effect on the financial statements shall be position or results of operation of any change in the application of accounting principles and practices during the period, subject only to audit and year-end adjustments, and certified by the Borrower’s president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations to be true and cash flows of Borrower and its Subsidiaries in accordance with GAAP accurate; (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
(ib) As soon as practicable, and in any event within Within one hundred twenty (100120) days after the end close of each Fiscal YearYear of the Borrower, the consolidating and an audited consolidated balance sheet of the Borrower and its Subsidiaries as at of the end close of such Fiscal Year and the consolidating and audited consolidated statements of income, operations, stockholders’ equity income and cash flows, in each case of flows for the Borrower and its Subsidiaries for such the Fiscal YearYear then ended, including the notes to each, all in reasonable detail. Such detail setting forth in comparative form the corresponding figures for the preceding Fiscal Year, prepared by an independent certified public accountant reasonably acceptable to the Bank, in accordance with GAAP applied on a basis consistent with that of the preceding year or containing disclosure of the effect on the financial statements shall be prepared position or results of operation of any change in the application of accounting principles and practices during the year, and accompanied by a report thereon by such certified public accountant containing an opinion that is not qualified with respect to scope limitations imposed by the Borrower or its Subsidiaries or with respect to accounting principles followed by the Borrower or its Subsidiaries not in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Credit Agreement
Financial and Business Information. So long as any Advance remains unpaid, or any Letter of Credit remains outstanding or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, the Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at the Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidated and consolidating and consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidated and consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such and with comparisons to the combined results of operations, on a pro forma basis for the same Fiscal Quarter in the prior year. Such financial statements shall be certified by a Senior Officer of the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred (100) ninety days after the end of each Fiscal Year, (i) the consolidated and consolidating and consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidated and consolidating and consolidated statements of income, operations, stockholders’ shareholders' equity and cash flows, in each case of the Borrower and its Subsidiaries for such Fiscal Year, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP one of the five largest public accounting firms in the United States of America or other independent public accountants of recognized standing selected by the Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Lenders in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Lenders. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing under Sections 6.13 through 6.15 or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed the Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.136.13 through 6.15, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by the Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(c) As soon as practicable, and in any event not later than sixty 45 days following the end of the Fiscal Quarter ending on each June 30, a completed Pricing Certificate setting forth the Total Leverage Ratio as of the last day of the that Fiscal Quarter;
(60d) As soon as practicable, and in any event within 45 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next two succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected consolidated balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows, of the Borrower and its Subsidiaries, all in reasonable detail;
(de) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of Borrower, the Borrower or any of its Subsidiaries, or any audit of any of them;
(ef) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiariesthe Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1Section;
(fg) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements copies of the Nevada "Regulation 6.090 Report" and "6-A Report";
(h) Promptly after request by the Administrative Agent or any Governmental AgencyLender, copies of any other report or other document that was filed by Borrower, the Borrower or any of its Subsidiaries with any Governmental AgencyAgency (other than routine applications and reports filed by the Borrower and its Subsidiaries with any Gaming Board);
(gi) Promptly upon a Senior Officer of Borrower, becoming awareAs soon as practicable, and in any event within five (5) Banking 10 Business Days after becoming aware, a Senior Officer of the Borrower becomes aware of the occurrence of any material (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving in connection with any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking five Business Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action the Borrower or any of its Subsidiaries is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hj) As soon as practicable, and in any event within two (2) Banking 2 Business Days after a Senior Officer of the Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking 2 Business Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action the Borrower is or its Subsidiaries are taking or proposes propose to take with respect thereto;
(ik) Promptly upon a Senior Officer of the Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against the Borrower or any of its Subsidiaries that is $250,000 5,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a written credit agreement or material lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of the Borrower or any of its Subsidiaries orSubsidiaries, (iii) any Person has commenced a legal proceeding with respect to a claim against the Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 5,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, (iv) any labor union has notified the Borrower of its intent to strike the Borrower or any of its Subsidiaries on a date certain and such strike would involve more than 100 employees of the Borrower or its Subsidiaries, (v) any Gaming Board has indicated its intent to consider or act upon a License Revocation or a fine or penalty of $500,000 or more with respect to the Borrower or any of its Subsidiaries, or (vi) any Governmental Agency has notified the Borrower of the commencement of any material action, suit, proceeding or investigation against the Borrower or any of its Subsidiaries by such Governmental Agency, including any action, suit, proceeding or investigation relating to any Hazardous Materials Laws, a written notice describing the pertinent facts relating thereto and what action the Borrower and/or or its applicable Subsidiaries are taking or propose to take with respect thereto; and;
(jl) Promptly and in any event within five Business Days following the occurrence of any Change in Control, notice thereof;
(m) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 ; and
(to n) Promptly after the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify notified the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide intention by the Borrower to Administrative Agent by electronic mail electronic versions treat the Loans as being a "reportable transaction" (i.e., soft copieswithin the meaning of Treasury Regulation Section 1.6011-4) a duly completed copy of such documentsIRS Form 8886 or any successor form.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, unpaid or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and quarterly unaudited consolidated financial statements, including a consolidated balance sheet sheet, income statement and statement of Borrower and its Subsidiaries cash flows of the Consolidated Group as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or Parent’s chief financial officer of Borrower or chief accounting officer as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries the Consolidated Group in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-year end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within (i) fifty (50) days after the end of each Fiscal Quarter other than the fourth Fiscal Quarter of any Fiscal Year and (ii) one hundred (100) days after the end of each such fourth Fiscal YearQuarter, a Compliance Certificate as of the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end last day of such Fiscal Year and the consolidating and consolidated statements of incomeQuarter, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in providing reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory detail as to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).calculation thereof;
(c) As soon as practicable, and in any event not later than sixty within (60i) fifty (50) days subsequent after the end of each Fiscal Quarter other than the fourth Fiscal Quarter of any Fiscal Year and (ii) one hundred (100) days after the end of such fourth Fiscal Quarter, statements of operating income for such Fiscal Quarter and Fiscal Year to date for the Subject Property and a complete Project roster, each in such detail as the Administrative Agent may reasonably require;
(d) All written information provided to shareholders of Parent;
(e) Upon request by the Administrative Agent, as soon as practicable, and in any event before the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flowConsolidated Group, all in reasonable detail;
(df) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Parent by independent accountants in connection with the accounts or books of Borrower, Parent or any other member of its Subsidiariesthe Consolidated Group, or any audit of any of them;
(eg) Promptly after the same are available, and in any event within five ten (510) Banking Days days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.115.1;
(fh) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other material report or other document that was filed by Borrower, the Consolidated Group with any Governmental Agency;
(gi) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-non exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower the Consolidated Group is taking or proposes propose to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hj) As soon as practicable, and in any event within two five (25) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower the Consolidated Group is taking or proposes propose to take with respect thereto;
(ik) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Loan Party that is $250,000 5,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 5,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 5,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries Loan Party or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Loan Party under a contract (that is not a credit agreement or material lease with respect to a claim of lease) in excess of $250,000 5,000,000 or which otherwise may reasonably be expected to result in would constitute a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries the Loan Parties are taking or propose to take with respect thereto;
(l) [Intentionally omitted];
(m) Not later than fifty (50) days after the end of each fiscal quarter of the Consolidated Group (including the fourth fiscal quarter in each year), a list (which may be included in the Compliance Certificates) setting forth the following information with respect to each new Subsidiary or Controlled Entity of any of the Loan Parties: (i) the name, structure and ownership of the Subsidiary or Controlled Entity, (ii) a description of the property owned by such Subsidiary or Controlled Entity, and (iii) such other information as the Administrative Agent may reasonably request;
(n) Simultaneously with the delivery of the financial statements to Administrative Agent (if such information is not otherwise included in the financial statements or other information presented to the Lenders pursuant to this Section 15.1), a statement (which may be included in the Compliance Certificates) listing (i) the Projects owned by the Consolidated Group (or in which the Consolidated Group owns an interest) and stating the location thereof, the date acquired and the acquisition cost (with respect to each new Project), (ii) the Indebtedness of the Consolidated Group, which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non recourse, and (iii) the Projects of the Consolidated Group which are Unstabilized Projects and providing a brief summary of the status of such development;
(o) Commencing thirty (30) days following the Substantial Completion of the Construction of the Improvements on the Subject Property, and fifteen (15) days following the end of each calendar month thereafter, Borrower shall deliver to Administrative Agent: a current rent roll and a summary of all leasing activity then taking place with respect to the Subject Property, particularly describing the status of all pending lease negotiations, if any, and (ii) after Substantial Completion of the Construction of the Improvements, monthly unaudited operating cash flow statements for the Subject Property, certified as true, complete and correct by Borrower showing actual sources and uses of cash during the preceding month; and
(jp) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Secured Acquisition and Construction Loan Agreement (BioMed Realty Trust Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty forty-five (5045) days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30March 31, 20052002), the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be (i) certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustmentsadjustments and (ii) accompanied by a performance budget analysis reasonably acceptable to the Administrative Agent.
(ib) As soon as practicable, and in any event within one hundred ninety (10090) days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ stockkholders' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP KPMG Peat Marwick or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite LendersLenders (without giving effect to the proviso in the definition thereof), which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s 's or its Subsidiaries’ ' applicable process of management of accounts, (ii) such Accounts. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 6.12, 6.13, 6.14 and 6.136.15, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in Agreement In addition, Borrower shall deliver to the Administrative Agent a copy of (Ai) any “"management letter” " prepared by such accountants in conjunction with preparation of the foregoing report and (Bii) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event within 45 days after the end of each Fiscal Quarter, a Pricing Certificate setting forth a calculation of the Leverage Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations in the case of the fourth Fiscal Quarter in any Fiscal Year shall be based on the preliminary unaudited financial statements of Borrower and its Subsidiaries for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Leverage Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(d) As soon as practicable, and in any event not later than sixty thirty (6030) days subsequent prior to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the latest Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(de) Within thirty (30) days after filing, but in no event later than October 15th, copies of Borrower's and each Subsidiary's (to the extent prepared and filed) filed federal income tax returns for such year;
(f) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(eg) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fh) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(gi) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hj) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaidunpaid or unperformed, or any portion of any of the Commitments remains in force, Borrower Parent and the Borrowers shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to and the Lenders, a sufficient number of copies for all of the Lenders of the followingat Parent's and Borrowers' sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such each Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower Parent as fairly presenting the financial condition, results of operations and cash flows of Borrower Parent and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event prior to the penultimate Business Day of February in each Fiscal Year, a Certificate of a Responsible Official setting forth the Total Debt Ratio as of the last day of the fourth Fiscal Quarter of the preceding year, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of Parent and its Subsidiaries for such Fiscal Quarter;
(c) As soon as practicable, and in any event within one hundred (100) 120 days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ shareholders' equity and cash flows, in each case of Borrower Parent and its Subsidiaries for such Fiscal Year as at and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, . Such accountants' report and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report opinion shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s Parent's and Borrowers' financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 Section 6.5 and 6.136.6, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such 52 accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower Parent and the Borrowers in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cd) As soon as practicable, and in any event not later than sixty (60) within 90 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next four succeeding Fiscal Year thereafter through Years, INCLUDING for the Maturity Datefirst such Fiscal Year, projected quarterly consolidated balance sheets, statements statement of operations and statements of cash flow and, for the remaining four Fiscal Years, projected annual consolidated condensed balance sheets and statements of operations and cash flow, of Parent and its Subsidiaries, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended, 1934 and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1Section;
(f) Promptly after the same are available, copies of the Nevada "Regulation 6.090 Report" and "6-A Report" and copies of any written communication to Parent or any of its Subsidiaries from any Gaming Board advising it of a violation of or non-compliance with, any Gaming Law by Parent or any of its Subsidiaries;
(g) Promptly after request by Lender, subject to confidentiality requirements of any Governmental AgencyCreditor, copies of any other report or other document that was filed by Borrower, Parent or any of its Subsidiaries with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking three Business Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking three Business Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is Parent or any of its Subsidiaries are taking or proposes propose to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that of any litigation, governmental investigation or any proceeding (including any litigation or proceeding by or subject to decision by any Gaming Board) pending (i) any Person has commenced a legal proceeding with respect to a claim against Borrower Parent or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may could reasonably be expected to result in have a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take (ii) with respect theretoto any material Indebtedness of Parent or any of its Subsidiaries, or (iii) with respect to the Loan Documents, notice of the existence of the same;
(j) Promptly after the Borrowers have notified the Administrative Agent of any intention by the Borrowers to treat the Loans and/or Letters of Credit as being a "reportable transaction" (within the meaning of Treasury Regulation Section 1.6011-4) a duly completed copy of IRS Form 8886 or any successor form; and
(jk) Such other data and information as from time to time may be reasonably requested by any Creditor through the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsAgent.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, shall deliver to Lender the Administrative Agent for distribution by it following (all to the Lenders, a sufficient number of copies for all of the Lenders of the following:be in form and substance satisfactory to Lender):
(ia) As as soon as practicableavailable, and but in any event within fifty one hundred twenty (50120) days after the end of each Fiscal Quarter ending March 31fiscal year of Borrower, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30, 2005), the consolidating and consolidated balance sheet financial statements of Borrower and its Subsidiaries for such fiscal year which present fairly Borrower’s financial condition, including balance sheets as at of the end of such Fiscal Quarter fiscal year and the consolidating and consolidated statements of incomeearnings, operations statements of shareholders’ equity (deficit) and statements of cash flows for such Fiscal Quarterfiscal year, prepared in accordance with GAAP, and the portion audited by an independent certified public accounting firm of the Fiscal Year ended with such Fiscal Quarterrecognized standing selected by Xxxxxxxx and reasonably satisfactory to Xxxxxx, together with an unqualified opinion on the financial statements from such accounting firm;
(b) as soon as available, but in any event within one hundred twenty (120) days after the end of each fiscal year of Guarantor, financial statements of Guarantor for such fiscal year which present fairly Guarantor’s financial condition, including balance sheets as of the end of such fiscal year and statements of income and statements of cash flows for such fiscal year, all on a statement consolidated basis and accompanied by consolidating schedules, prepared in accordance with GAAP, and audited by an independent certified public accounting firm of Stockholders’ Equity recognized standing selected by Guarantor and reasonably satisfactory to Lender, together with an unqualified opinion on the financial statements from such accounting firm (for the avoidance of doubt, this clause (b) shall be satisfied by the delivery of financial statements of an Affiliate which are consolidated with the financial statements of Guarantor for financial reporting purposes and which otherwise comply with this clause (b));
(c) as soon as available, but in any event within thirty (30) days after the end of each month, internally-prepared financial statements of Borrower for such month, along with year to date information and comparative information from the same periods of the preceding fiscal year, which present fairly Borrower’s financial condition, including balance sheets as of the end of such month and statements of earnings for such month, prepared in accordance with GAAP (subject to the absence of footnotes and year-end adjustments);
(d) as soon as available, but in any event within thirty (30) days after the end of each month, a Borrowing Base Report as of the last day of such Fiscal Quarter, all in reasonable detail, month (iitogether with the supporting documentation required by Section 3.1(m) such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosureshereof), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ie) As as soon as practicableavailable, and but in any event within one hundred thirty (10030) days after the end of each Fiscal Yearmonth, a Compliance Certificate as of the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end last day of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, month (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection together with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(esupporting documentation required by Section 3.1(n) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1hereof);
(f) Promptly as soon as available, but in any event within one hundred twenty (120) days after request by Lender, subject to confidentiality requirements the end of any Governmental Agency, copies each fiscal year of any other report or other document that was filed by Borrower, financial projections of Borrower for the then current fiscal year, together with any Governmental Agencyan explanation of the assumptions used to forecast such financial projections;
(g) Promptly upon a Senior Officer the request of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when knownXxxxxx, any action taken documents required by the Internal Revenue Service with respect theretocompany issuing the Trade Credit Insurance in order to file a claim against the Trade Credit Insurance; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;and
(h) As soon such other data, reports, statements and information (financial or otherwise) as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise Lender may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsrequest.
Appears in 1 contract
Samples: Credit Agreement (Benson Hill, Inc.)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, unpaid or any portion of any of the Commitments Commitment remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event by the fifteenth Banking Day (or the thirtieth Banking Day in the case of the last month in a Fiscal Year) following, the end of a month, an operating revenue report for such month for each of the Developed Properties, in a form reasonably acceptable to the Administrative Agent, together with a written narrative statement discussing any significant trends reflected therein signed by a Responsible Officer of Borrower;
(b) As soon as practicable, and in any event within fifty (50) 60 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and (ii) the consolidating (in accordance with past consolidating practices of Borrower) balance sheets and statements of operations as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ic) As soon as practicable, and in any event within one hundred 45 days after the end of each Fiscal Quarter, a Pricing Certificate setting forth a preliminary calculation of the Pricing Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of Borrower and its Subsidiaries for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Pricing Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(100d) As soon as practicable, and in any event within 105 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year and (ii) consolidating (in accordance with past consolidating practices of Borrower) balance sheets and statements of operations, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptionsexceptions as to the scope of the audit nor to any other qualification or exception determined by the Requisite Lenders in their good faith business judgment to be adverse to the interests of the Lenders. Unless such independent public accountants do not, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process as a matter of management firm policy, generally provide similar information at the request of accountstheir audit clients, (ii) such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing described in Sections 9.1(a), (b), (c) or (g) or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.136.11 through 6.14, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(ce) As soon as practicable, and in any event not later than sixty (60) within 60 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next four succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected consolidated balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows, of Borrower and its Subsidiaries, all in reasonable detail;
(df) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Borrower by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(eg) As soon as practicable, and in any event within 45 days (or, in the case of the fourth Fiscal Quarter in each Fiscal Year, 90 days) after the end of each Fiscal Quarter, a written report, in form and detail reasonably acceptable to the Administrative Agent, with respect to the status of each project for which Capital Expenditures are permitted pursuant to Sections 6.15(d) or 6.15(e), as applicable;
(h) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fi) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agencythe Administrative Agent, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming awarethe Nevada "Regulation 6.090 Report" and "6-A Report" and the New Jersey "Annual Report", and in any event within five (5) Banking Days after becoming aware, of the occurrence copies of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as written communication to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its the Restricted Subsidiaries that is $250,000 from any Gaming Board advising it of a violation of or more in excess of the amount thereof that is fully covered non-compliance with any Gaming Law by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.Restricted Subsidiaries;
Appears in 1 contract
Financial and Business Information. So long as any Advance Loan remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments Revolving Commitment remains in force, Borrower Day Runner shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s Day Runner's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the followingeach Lender:
(ia) As soon as practicable, and in any event within fifty (50) 30 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and consolidated balance sheet of Borrower Day Runner and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer of Borrower Day Runner as fairly presenting in all material respects the financial condition, results of operations and cash flows of Borrower Day Runner and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred 30 days after the end of each Fiscal Quarter a certificate of a Senior Officer of Day Runner stating that the representations and warranties in Article V hereof are true and correct in all material respects as of the date of such certificate and that no Event of Default has occurred and is continuing or, if an Event of Default has occurred and is continuing, a statement as to the nature thereof and the action that Day Runner has taken and proposes to take with respect thereto;
(100c) As soon as practicable, and in any event within 100 days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower Day Runner and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower Day Runner and its Subsidiaries for such Fiscal Year, with all related consolidating financial statements prepared by Day Runner, all in reasonable detail. Such consolidated financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers Deloitte & Touche LLP or other independent public accountants of recognized standing selected by Borrower Day Runner and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such . Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Event of Default then existing relating to the breach by any Borrower of any of Sections 7.1, 7.2, 7.6, 7.9, 7.10, 7.12, 7.13, 7.16 and 7.19 of this Agreement or, if, in the opinion of such accountants, any such Event of Default shall exist, stating the nature and status of such Event of Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cd) As soon as practicable, and in any event not later within 20 days after the end of each month, the consolidated and consolidating balance sheet of Day Runner and its Subsidiaries as at the end of such month and the consolidated statements of operations and cash flows for such month, all in reasonable detail and prepared in comparison with the projections delivered to the Administrative Agent with respect to such month and the corresponding month in the preceding Fiscal Year. Such financial statements shall be certified by the chief financial officer of Day Runner as fairly presenting in all material respects the financial condition, results of operations and cash flows of Day Runner and its Subsidiaries in accordance with GAAP (other than sixty footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments;
(60e) As soon as practicable, and in any event within thirty (30) days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower by month and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year Year, and (ii) on an annual basis for each the next succeeding Fiscal Year thereafter through Year, including for the Maturity Datefirst such Fiscal Year, projected consolidated balance sheets, statements of operations and statements of cash flow, in each case by Fiscal Quarter and, for succeeding Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows of each Borrower and its Subsidiaries, all in reasonable detaildetail (it being understood that any projections provided hereunder shall be were prepared in good faith and will represent management's opinion of the projected financial performance of the Borrowers and their respective Subsidiaries based upon the information available to the Borrowers at the time so furnished);
(df) As soon as practicable, and in any event within fifteen (15) days after the end of each month, a report, in form and substance reasonably satisfactory to the Administrative Agent, from the management of Filofax Group with respect to the results from operations of Filofax Limited and certain of its other Subsidiaries for the preceding month;
(g) [Intentionally Omitted]
(h) Promptly after request by the Administrative Agent or any Lenderthe Requisite Lenders, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of any Borrower by independent accountants in connection with the accounts or books of Borrower, such Borrower or any of its Subsidiaries, or any audit of any of themthem and/or any tax returns filed by any Borrower or any of its Subsidiaries with the federal governments of the United States or the United Kingdom;
(ei) Promptly As soon as practicable, and in any event within 45 days after the end of each Fiscal Quarter, a copy of the Form 10-Q for such Fiscal Quarter filed with the Securities and Exchange Commission by any Borrower; (ii) as soon as practicable, and in any event within 100 days after the end of each Fiscal Year a copy of the Form 10-K for such Fiscal Year filed with the Securities and Exchange Commission by any Borrower; and (iii) promptly after the same are available, and in any event within five two (52) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which any Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to the other provisions of this Section 7.18.1;
(fj) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, any Borrower with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Loan Agreement (Day Runner Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower Borrowers shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s Borrowers' sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty 30 days after the end of each calendar month, a consolidated and consolidating (50in accordance with past consolidating practices of Parent) summary statement of operations of Parent and its Subsidiaries for such calendar month, in a form reasonably acceptable to the Administrative Agent, together with a written report as to current operating data and a narrative statement discussing any significant trends reflected therein;
(b) As soon as practicable, and in any event within 60 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and (ii) the consolidating (in accordance with past consolidating practices of Parent) balance sheets and statements of operations as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower Parent as fairly presenting the financial condition, results of operations and cash flows of Borrower Parent and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ic) As soon as practicable, and in any event within one hundred 45 days after the end of each Fiscal Quarter, a Pricing Certificate setting forth a preliminary calculation of the Parent Funded Debt Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of Parent and its Subsidiaries for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Parent Funded Debt Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(100d) As soon as practicable, and in any event within 120 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower Parent and its Subsidiaries for such Fiscal Year and (ii) consolidating (in accordance with past consolidating practices of Parent) balance sheets and statements of operations, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Lenders in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Lenders. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s Parent's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 6.9, 6.10, 7.4, 9.11 and 6.139.12 , have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower Parent in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(ce) As soon as practicable, and in any event not later than sixty (60) within 45 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next four succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected consolidated and consolidating balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated and consolidating condensed balance sheets and statements of operations and cash flows, of Parent and its Subsidiaries, all in reasonable detail;
(df) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Parent by independent accountants in connection with the accounts or books of Borrower, Parent or any of its Subsidiaries, or any audit of any of them;
(eg) As soon as practicable, and in any event within 45 days (or, in the case of the fourth Fiscal Quarter in each Fiscal Year, 90 days) after the end of each Fiscal Quarter, a written report, in form and detail reasonably acceptable to the Administrative Agent, with respect to the status of any Expansion Capital Expenditures then underway;
(h) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.110.1;
(fi) Promptly after the same are available, copies of the Nevada "Regulation 6.090 Report" and "6-A Report", and copies of any written communication to Parent or Borrowers from any Gaming Board advising it of a violation of or non-compliance with any Gaming Law by Parent, any Borrower or any Sibling Guarantor;
(j) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, Borrowers with any Governmental Agency;
(gk) Promptly upon a Senior Officer of Borrower, any Borrower becoming aware, and in any event within five ten (510) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving in connection with any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower Borrowers is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hl) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of any Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is Borrowers are taking or proposes propose to take with respect thereto;
(im) Promptly upon a Senior Officer of any Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against any Borrower or any of its Subsidiaries that is $250,000 10,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 10,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 10,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries orBorrower, (iii) any Person has commenced a legal proceeding with respect to a claim against any Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 10,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, (iv) any labor union has notified any Borrower of its intent to strike such Borrower on a date certain and such strike would involve more than 100 employees of such Borrower or (v) any Gaming Board has indicated its intent to consider or act upon a License Revocation or a fine or penalty of $1,000,000 or more with respect to any Borrower, a written notice describing the pertinent facts relating thereto and what action such Borrower and/or its applicable Subsidiaries are is taking or propose proposes to take with respect thereto; and
(jn) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Reducing Revolving and Term Loan Agreement (Station Casinos Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, The Company shall deliver to the Administrative Agent for distribution by it (who will promptly furnish to the Lenders):
(a) Monthly Deliveries: promptly, for each monthly period including the monthly period ending in the month immediately preceding the Termination Date (but excluding for purposes of clauses (i), (ii) and (iii) below, each December), a sufficient number of copies for all of the Lenders of the followingcopy of:
(i) As soon as practicable, and in any event within fifty (50) days after no later than the last Business Day of the month following the end of each Fiscal Quarter ending March 31monthly period, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30, 2005), the consolidating and Company prepared unaudited consolidated balance sheet sheets of Borrower the Company and its Subsidiaries as at the end of such Fiscal Quarter and month,
(ii) no later than the consolidating and last Business Day of the month following the end of each monthly period, Company prepared unaudited consolidated statements of income, operations income and cash flows changes in shareholders’ equity of the Company and its Subsidiaries for such Fiscal Quarter, month and (in the case of each month during the fiscal year except the first and last month) for the portion of the Fiscal Year fiscal year ending with such month,
(iii) with the delivery of the monthly financial statements described in (i) and (ii) above, Company prepared unaudited consolidated statements of income of the Company and its Subsidiaries for the twelve month period ended with such Fiscal Quartermonth, together with a statement of Stockholders’ Equity as and
(iv) no later than the last Business Day of the last day month following the end of each monthly period (or, in the case of each December, not later than 75 days after the end of such Fiscal Quartermonth), Company prepared unaudited statements of income for each dealership retail location for such month and (in the case of each month during the fiscal year except the first and last month) for the portion of the fiscal year ending with such month, setting forth in each case with respect to deliveries under clauses (i) and (ii), for each month in comparative form the figures for the corresponding periods in the previous fiscal year and the figures set forth for such periods in the Company’s budget for such fiscal year delivered to the Lenders pursuant to Section 6.01(m), all in reasonable detail, (ii) such financial statements shall be certified prepared by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
(i) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared Company in accordance with GAAP, consistently applied, and such consolidated certified by the chief financial statements shall be accompanied by a report officer of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards Company as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating thatfairly presenting, in making all material respects, the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation position of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower Company and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters and its results of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lenderoperations, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) nonchanges resulting from year-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsend adjustments.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaidunpaid or unperformed, or any portion of any of the Commitments Commitment remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to and the Lenders, a sufficient number of copies for all of the Lenders of the followingat Borrower's sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31Quarter, June 30 and September 30 (commencing with i) the Fiscal Quarter ending June 30, 2005), the consolidating and consolidated balance sheet of Borrower and its Restricted Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such each Fiscal Quarter, a schedule detailing Capital Expenditures and Distributions made during that Fiscal Quarter and the portion of the Fiscal Year ended with such Fiscal Quarter and (ii) the consolidating balance sheets and statements of operations as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Restricted Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred (100) 90 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet of Borrower and its Restricted Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ shareholders' equity and cash flows, in each case of Borrower and its Restricted Subsidiaries for such Fiscal Year and (ii) consolidating balance sheets and statements of operations, in each case as at and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP KPMG Peat Marwick or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, exceptions as to the scope of the audit nor to any other qualification or exception determined by the Requisite Lenders in their good faith business judgment to be adverse to the interests of the Lenders. Such accountants' report and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report opinion shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections Section 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(c) As soon as practicable, and in any event not later than sixty (60) within 90 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next three succeeding Fiscal Year thereafter through Years (but not past the Maturity Date), INCLUDING for the first such Fiscal Year, projected quarterly consolidated balance sheets, statements statement of operations and statements of cash flow and, for the remaining three Fiscal Years, projected annual consolidated condensed balance sheets and statements of operations and cash flow, of Borrower and its Restricted Subsidiaries, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any LenderCreditor, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Borrower by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Restricted Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments Commitment remains in force, Borrower Borrowers shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s Borrowers' sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty 30 days after the end of each calendar month, a consolidated and consolidating (50in accordance with past consolidating practices of Parent) summary statement of operations of Parent and its Subsidiaries for such calendar month, in a form reasonably acceptable to the Administrative Agent, together with a written report as to current operating data and a narrative statement discussing any significant trends reflected therein;
(b) As soon as practicable, and in any event within 60 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with OTHER THAN the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and (ii) the consolidating (in accordance with past consolidating practices of Parent) balance sheets and statements of operations as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower Parent as fairly presenting the financial condition, results of operations and cash flows of Borrower Parent and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ic) [Intentionally Omitted]
(d) As soon as practicable, and in any event within one hundred (100) 120 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower Parent and its Subsidiaries for such Fiscal Year and (ii) consolidating (in accordance with past consolidating practices of Parent) balance sheets and statements of operations, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Lenders in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Lenders. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s Parent's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 9.1 and 6.139.9, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower Parent in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(ce) As soon as practicable, and in any event not later than sixty (60) within 45 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next four succeeding Fiscal Year thereafter through Years, INCLUDING for the Maturity Datefirst such Fiscal Year, projected consolidated and consolidating balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated and consolidating condensed balance sheets and statements of operations and cash flows, of Parent and its Subsidiaries, all in reasonable detail;
(df) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Parent by independent accountants in connection with the accounts or books of Borrower, Parent or any of its Subsidiaries, or any audit of any of them;
(eg) [Intentionally Omitted]
(h) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.110.1;
(fi) Promptly after the same are available, copies of the Nevada "Regulation 6.090 Report" and "6-A Report", and copies of any written communication to Parent or Borrowers from any Gaming Board advising it of a violation of or non-compliance with any Gaming Law by Parent, any Borrower or any Sibling Guarantor;
(j) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, Borrowers with any Governmental Agency;
(gk) Promptly upon a Senior Officer of Borrower, any Borrower becoming aware, and in any event within five ten (510) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving in connection with any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower Borrowers is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hl) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of any Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is Borrowers are taking or proposes propose to take with respect thereto;
(im) Promptly upon a Senior Officer of any Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against any Borrower or any of its Subsidiaries that is $250,000 10,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 10,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 10,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries orBorrower, (iii) any Person has commenced a legal proceeding with respect to a claim against any Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 10,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, (iv) any labor union has notified any Borrower of its intent to strike such Borrower on a date certain and such strike would involve more than 100 employees of such Borrower or (v) any Gaming Board has indicated its intent to consider or act upon a License Revocation or a fine or penalty of $1,000,000 or more with respect to any Borrower, a written notice describing the pertinent facts relating thereto and what action such Borrower and/or its applicable Subsidiaries are is taking or propose proposes to take with respect thereto; and
(jn) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance ---------------------------------- remains unpaid, unpaid or any other Obligation remains unpaid, or any portion of any of the Commitments Commitment remains in force, Borrower and each Co-Borrower shall, unless the Administrative Agent (with the written approval of the Requisite LendersBanks) otherwise consents, at Borrower’s 's and the Co-Borrowers' sole expense, deliver to the Administrative Agent for distribution by it to the LendersBanks, a sufficient number of copies for all of the Lenders Banks of the following:
(ia) As soon as practicable, and in any event within fifty (50) 60 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any ----- ---- Fiscal Year), the consolidated and consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidated and consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently ----- ---- applied, as at such date and for such periods, subject only to normal year-year- end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred 45 days after the end of each Fiscal Quarter, a Pricing Certificate setting forth a preliminary calculation of the Leverage Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of Borrower for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Leverage Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(100c) As soon as practicable, and in any event within 105 days after the end of each Fiscal Year, (i) the consolidated and consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidated and consolidating and consolidated statements of income, operations, stockholders’ shareholders' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP one of the six largest public accounting firms in the United States of America or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite LendersBanks, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Banks in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Banks. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 6.8 and 6.136.9, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cd) As soon as practicable, and in any event not later than sixty (60) within 45 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next two succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected --------- consolidated balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows, of Borrower and its Subsidiaries, all in reasonable detail;
(de) Promptly after request by the Administrative Agent or any LenderBank, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Borrower by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(ef) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders Banks pursuant to other provisions of this Section 7.1Section;
(fg) Promptly after request by Lenderthe Administrative Agent or any Bank, subject to confidentiality requirements copies of the Nevada "Regulation 6.090 Report" and "6-A Report";
(h) Promptly after request by the Administrative Agent or any Governmental AgencyBank, copies of any other report or other document that was filed by Borrower, Borrower or any of its Subsidiaries with any Governmental AgencyAgency (other ----- than any report regarding Tracinda Corporation or individuals associated ---- with Tracinda Corporation, Borrower and its Subsidiaries and their confidential business or financial information);
(gi) Promptly upon a Senior Officer of Borrower, becoming awareAs soon as practicable, and in any event within five (5) ten Banking Days after becoming aware, a Senior Officer of Borrower or any Co-Borrower becomes aware of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving in connection with any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) five Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower or any of its Subsidiaries is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hj) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower or any Co-Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is or its Subsidiaries are taking or proposes propose to take with respect thereto;
(ik) Promptly upon a Senior Officer of Borrower or any Co-Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 5,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a written credit agreement or material lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries orSubsidiaries, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 25,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, (iv) any labor union has notified Borrower of its intent to strike Borrower or any of its Subsidiaries on a date certain and such strike would involve more than 100 employees of Borrower or its Subsidiaries, or (v) any Gaming Board has indicated its intent to consider or act upon a License Revocation or a fine or penalty of $1,000,000 or more with respect to Borrower or any of its Subsidiaries, a written notice describing the pertinent facts relating thereto and what action Borrower and/or or its applicable Subsidiaries are taking or propose to take with respect thereto;
(l) As soon as practicable, and in any event by the thirtieth day in the next following month, an operating revenue report for the preceding calendar month with respect to each operating casino property of Borrower and its Subsidiaries (including the Australia Companies), segmented for each such casino property and otherwise in a form reasonably acceptable to the Administrative Agent, together with a written narrative statement discussing any significant trends reflected therein signed by a Senior Officer of Borrower;
(m) Promptly following any Senior Officer of Borrower or any Co- Borrower becoming aware of any change in the credit ratings assigned by Xxxxx'x or S&P to the credit facilities provided hereunder (whether senior secured or senior unsecured) written notice of such change and, if the same will result in a revision to the Debt Rating, a revised Pricing Certificate setting forth the revised Debt Rating; and
(jn) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Bank (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsBanks.
Appears in 1 contract
Samples: Term Loan Agreement (MGM Grand Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of either the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(a) During (i) the Construction Period for the Phase II Project, as soon as practicable, and in any event by the 20th day of the next following month, all information requested by CSG for the preparation of its construction progress report as of the last day of the preceding calendar month in a form reasonably acceptable to the Administrative Agent, which report shall compare the status of construction and amounts expended to the related Construction Timetable and Construction Budget, and (ii) the Construction Period for the Phase III Project, not later than the last day of each calendar month, an internally prepared narrative construction progress report in respect of the Phase III Project in a form reasonably acceptable to the Administrative Agent;
(b) As soon as practicable, and in any event by the last day of the next following month, financial statements of Borrower for the preceding calendar month (commencing with the first full calendar month after the Completion Date) in a form reasonably acceptable to the Administrative Agent, together with a written narrative statement discussing any significant trends reflected therein signed by a Senior Officer;
(c) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and (ii) if applicable and if requested by the Administrative Agent, the consolidating balance sheets and statements of operations as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer of Borrower a Senior Officer as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-year end accruals and audit adjustments.
(i) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Loan Agreement (Station Casinos Inc)
Financial and Business Information. So long as any Advance remains ---------------------------------- unpaid, or any other Obligation remains unpaidunpaid or unperformed (other than the obligations referenced in Section 3.18), or any portion of any of the Commitments Commitment remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to and the Lenders, a sufficient number of copies for all of the Lenders of the followingat Borrower's sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31Quarter, June 30 and September 30 (commencing with i) the Fiscal Quarter ending June 30, 2005), the consolidating and consolidated balance sheet sheets of Borrower as at the end of such Fiscal Quarter, (ii) statements of income and its Subsidiaries retained earnings and of cash flow of Borrower as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement and (iii) the statements of Stockholders’ Equity as cash flow of Borrower for such Fiscal Quarter and for the portion of the last day of Fiscal Year ended with such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower as fairly presenting the financial condition, results of operations and changes in financial position or cash flows of Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than any requirement for footnote disclosures), ) consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.adjustments and shall be accompanied by a management narrative description of results of operations;
(ib) As soon as practicable, and in any event within one hundred (100) 90 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet sheets of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated Year, (ii) statements of income, operations, stockholders’ equity income and retained earnings and of cash flows, in each case flows of Borrower for such Fiscal Year, and its Subsidiaries (iii) statements of cash flow of Borrower for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared based on an audit conducted in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report opinion shall be accompanied by a certificate stating that, in making an unqualified opinion without additional explanatory or non-standard wording which the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements Requisite Lenders determine is unacceptable and such report, such accountants have obtained with no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations limitation as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention scope of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).their audit;
(c) Concurrently with the delivery of the financial statements referred to in Sections 8.1(a) and 8.1(b), a written discussion and analysis of the financial condition and results of operations of Borrower in reasonable detail, including in the case of any such report delivered in connection with the financial statements referred to in Section 8.1(b), an explanation of any material variance from operational results or balance sheet items contained in projections previously delivered to the Lenders;
(d) As soon as practicable, and in any event not later than sixty within 20 days after the end of each calendar month, a monthly revenue report showing revenues for the prior calendar month associated with each gaming category, occupancy percentage, and average hotel room rental rates experienced by the Mohegan Sun during such monthly period;
(60e) As soon as practicable, and in any event within 90 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) projected financial statements by Fiscal Quarter Year for each of the four (4) three Fiscal Quarters of Years immediately subsequent to that Fiscal Year and (ii) on an annual basis for Year, including, in each succeeding Fiscal Year thereafter through the Maturity Datecase, projected balance sheets, statements of operations income and retained earnings and statements of cash flowflow of Borrower, all in reasonable detaildetail and in any event to include (i) projected Distributions to be made to the Tribe by Borrower and (ii) projected Capital Expenditures;
(df) Promptly after request following receipt by the Administrative Agent or any LenderBorrower, copies of any detailed audit reports, management letters reports or recommendations submitted to Borrower (or its board of directors) the Tribe by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, Borrower or any audit of any of themBorrower;
(eg) Promptly following a filing, copies of any specific report or other document filed by Borrower (or by the Tribe in respect of its gaming operations or any Authority Property) with any Governmental Agency, including without limitation all reports which Borrower is required to file with the National Indian Gaming Commission under 25 C.F.R. Part 514;
(h) Promptly after the same are available, and in any event within five (5) Banking Days after filing with a copy of the Securities and Exchange Commission, copies Form 5500 series report of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action maintained by Borrower is taking or proposes to take as filed with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000for each Fiscal Year;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation (other than indemnity obligations for which no claim has been made) remains unpaidunpaid or unperformed, or any portion of any of the Commitments Commitment remains in force, Borrower the Company shall, unless the Administrative Agent (with the written approval of the Requisite LendersMajority Banks) otherwise consents, at Borrower’s sole expenseconsents in writing, deliver to the Banks and the Administrative Agent for distribution by it to Agent, at the Lenders, a sufficient number of copies for all of the Lenders of the followingCompany’s sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet sheets of Borrower the Company and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and Quarter, (ii) consolidated statements of incomeincome and (iii) consolidated statements of cash flow, operations in each case described in clauses (ii) and cash flows (iii) of this Section 7.1(a) of the Company and its Subsidiaries for such Fiscal Quarter, Quarter and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by a Senior Officer of the president or chief financial officer of Borrower Company as fairly presenting the financial condition, results of operations and cash flows changes in financial position of Borrower the Company and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than any requirement for footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred (100) 90 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet sheets of Borrower the Company and its Subsidiaries as at the end of such Fiscal Year and the consolidating and Year, (ii) consolidated statements of income, operations, stockholders’ equity income of the Company and its Subsidiaries for such Fiscal Year and (iii) consolidated statements of cash flows, in each case flow of Borrower the Company and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently appliedGenerally Accepted Accounting Principles, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP Xxxxx & Xxxxx or other independent public accountants of recognized national standing selected by Borrower and reasonably satisfactory to the Requisite LendersCompany, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of Borrower or any of its Subsidiariesthe Company generally, and copies of all annual, regular, periodic periodic, current and special reports and registration statements which Borrower the Company or any a Subsidiary of its Subsidiaries the Company may file or be required to file with the Securities and Exchange Commission under Section Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fd) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming awarePromptly, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware the Company obtains actual knowledge of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower the Company or any of its Subsidiaries is taking or proposes to take with respect thereto;
(ie) Promptly upon a Senior Officer of Borrower becoming aware that of the occurrence of any ERISA Event defined in clauses (i) any Person has commenced a legal proceeding with respect through (vii) or (xi) of the definition thereof involving Title IV of ERISA that could reasonably be expected to a claim against Borrower result in material liability to the Company or its Subsidiaries or any of its Subsidiaries ERISA Event that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may could reasonably be expected to result in a Material Adverse Effect, a written notice describing specifying the pertinent facts relating thereto and nature thereof, what action Borrower and/or the Company or any of its applicable Subsidiaries are ERISA Affiliates has taken, is taking or propose proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and;
(jf) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date With reasonable promptness, copies of (a) on which Borrower provides notice each Schedule SB (Actuarial Information) to Lenders that such information has been posted on Borrowerthe annual report, if any (Form 5500 Series), filed by the Company or any of its Current ERISA Affiliates with the Internal Revenue Service with respect to each Pension Plan following the Administrative Agent’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or request; (b) on all notices received by the Company or any of its Current ERISA Affiliates from the sponsor of a Multiemployer Plan to which documents are posted on Borrower’s behalf on the Platform; provided that a Current ERISA Affiliate contributes concerning an ERISA Event defined in clauses (i) Company shall notify the Administrative Agent and each Lender through (by telecopier or electronic mailvii) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.or
Appears in 1 contract
Samples: Credit Agreement (Amgen Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any Letter of Credit remains outstanding, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, Lenders (and the Administrative Agent agrees to so distribute such materials to the Lenders promptly after receipt thereof) a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter ending March 31(other than the fourth Fiscal Quarter in any Fiscal Year), June 30 and September 30 (commencing a copy of Borrower’s 10-Q for such Fiscal Quarter as filed with the Fiscal Quarter ending June 30Securities and Exchange Commission, 2005), the consolidating and which will include a consolidated balance sheet sheet, income statement and statement of Borrower and its Subsidiaries cash flows of the Consolidated Group as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such financial statements and shall be certified by the president or Parent’s chief executive officer, chief financial officer of Borrower or chief accounting officer as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries the Consolidated Group in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-year end accruals and audit adjustments.;
(b) As soon as practicable, and in any event within (i) fifty (50) days after the end of each Fiscal Quarter other than the fourth Fiscal Quarter in any Fiscal Year and (ii) one hundred (100) days after the end of such fourth Fiscal Quarter, a Compliance Certificate as of the last day of such Fiscal Quarter, providing reasonable detail as to the calculation thereof;
(c) As soon as practicable, and in any event within (i) fifty (50) days after the end of each Fiscal Quarter other than the fourth Fiscal Quarter in any Fiscal Year and (ii) one hundred (100) days after the end of such fourth Fiscal Quarter, a statement of Funds From Operations in such detail as the Administrative Agent may reasonably require;
(d) All written information provided to shareholders of Parent;
(e) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, a copy of Borrower’s Form 10-K for such Fiscal Quarter as required by and filed with the consolidating Securities and Exchange Commission which will include a consolidated balance sheet sheet, income statement and statement of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries the Consolidated Group for such Fiscal Year, all in reasonable detail. Such financial statements , and shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied certified by a report of PricewaterhouseCoopers LLP KPMG or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations exceptions as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention scope of such accountants the audit nor to any other qualification or exception determined by the Requisite Lenders in the course of such examination that would cause them their good faith business judgment to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver be adverse to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation interests of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).Lenders;
(cf) As Upon request by the Administrative Agent, as soon as practicable, and in any event not later than sixty (60) days subsequent to before the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flowConsolidated Group, all in reasonable detail;
(dg) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Parent by independent accountants in connection with the accounts or books of Borrower, Parent or any other member of its Subsidiariesthe Consolidated Group, or any audit of any of them;
(eh) Promptly after the same are available, and in any event within five ten (510) Banking Days days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fi) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other material report or other document that was filed by Borrower, the Consolidated Group with any Governmental Agency;
(gj) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-non exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower the Consolidated Group is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hk) As soon as practicable, and in any event within two ten (210) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two ten (210) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower the Consolidated Group is taking or proposes propose to take with respect thereto;
(il) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Guarantor that is $250,000 5,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 25,000,000 or more or any lessor under a lease involving aggregate annual rent of $250,000 5,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries Guarantor or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Guarantor under a contract (that is not a credit agreement or material lease with respect to a claim of lease) in excess of $250,000 10,000,000 or which otherwise may reasonably be expected to result in would constitute a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action the Borrower and/or its applicable Subsidiaries and Guarantor are taking or propose to take with respect thereto;
(m) Promptly upon a Senior Officer becoming aware of, and in any event within five (5) Banking Days after the occurrence of, any change in a Credit Rating of the Parent, a written notice describing such change.
(n) Not later than fifty (50) days after the end of each fiscal quarter of the Consolidated Group (including the fourth fiscal quarter in each year), a list (which may be included in the Compliance Certificates) setting forth the following information with respect to each new Subsidiary or Controlled Entity of the Borrower and Guarantor: (i) the name, structure and ownership of the Subsidiary or Controlled Entity, (ii) a description of the property owned by such Subsidiary or Controlled Entity, and (iii) such other information as the Administrative Agent may reasonably request;
(o) Simultaneously with the delivery of the financial statements referred to in Section 7.1(e) above (if such information is not otherwise included in the financial statements or other information presented to the Lenders pursuant to this Section 7.1), a statement (which may be included in the Compliance Certificates) listing (i) the Projects owned by the Consolidated Group (or in which the Consolidated Group owns an interest) and stating the location thereof, the date acquired and the acquisition cost (with respect to each new Project), (ii) the Indebtedness of the Consolidated Group, which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non recourse, and (iii) the Projects of the Consolidated Group which are Unstabilized Projects and providing a brief summary of the status of such Unstabilized Projects; and
(jp) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaidunpaid or unperformed, or any portion of any of the Aggregate Commitments remains in force, Borrower Parent and the Borrowers shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to and the Lenders, a sufficient number of copies for all of the Lenders of the followingat Parent’s and Borrowers’ sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such each Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower Parent as fairly presenting the financial condition, results of operations and cash flows of Borrower Parent and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event prior to the penultimate Business Day of February in each Fiscal Year, a Certificate of a Responsible Official setting forth the Total Debt Ratio as of the last day of the fourth Fiscal Quarter of the preceding year, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of Parent and its Subsidiaries for such Fiscal Quarter;
(c) As soon as practicable, and in any event within one hundred (100) 120 days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholdersshareholders’ equity and cash flows, in each case of Borrower Parent and its Subsidiaries for such Fiscal Year as at and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such . Such accountants’ report and opinion shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed BorrowerParent’s and Borrowers’ financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 Section 6.5 and 6.136.6, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower Parent and the Borrowers in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cd) As soon as practicable, and in any event not later than sixty (60) within 90 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next four succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected quarterly consolidated balance sheets, statements statement of operations and statements of cash flow and, for the remaining four Fiscal Years, projected annual consolidated condensed balance sheets and statements of operations and cash flow, of Parent and its Subsidiaries, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended, 1934 and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after the same are available, copies of the Nevada “Regulation 6.090 Report” and “6-A Report” and copies of any written communication to Parent or any of its Subsidiaries from any Gaming Board advising it of a violation of or non-compliance with, any Gaming Law by Parent or any of its Subsidiaries;
(g) Promptly after request by Lender, subject to confidentiality requirements of any Governmental AgencyCreditor, copies of any other report or other document that was filed by Borrower, Parent or any of its Subsidiaries with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking three Business Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking three Business Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is Parent or any of its Subsidiaries are taking or proposes propose to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that of any litigation, governmental investigation or any proceeding (including any litigation or proceeding by or subject to decision by any Gaming Board) pending:
(i) any Person has commenced a legal proceeding with respect to a claim against Borrower Parent or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, which could reasonably be expected to have a Material Adverse Effect;
(ii) with respect to any creditor under a credit agreement involving material Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower Parent or any of its Subsidiaries Subsidiaries; or,
(iii) any Person has commenced a legal proceeding with respect to the Loan Documents, notice of the existence of the same;
(j) Promptly after the Borrowers have notified the Administrative Agent of any intention by the Borrowers to treat the Loans and/or Letters of Credit as being a claim against Borrower “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4) a duly completed copy of IRS Form 8886 or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect theretosuccessor form; and
(jk) Such other data and information as from time to time may be reasonably requested by any Creditor through the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsAgent.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, The Company shall deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number MetLife and each holder of copies for all of the Lenders of the followingNotes that is an Institutional Investor:
(ia) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30, 2005), the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
(i) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly Quarterly Statements — promptly after the same are available, and in any event within five 45 days after the end of each quarterly fiscal period in each fiscal year of the Company (5other than the last quarterly fiscal period of each such fiscal year) Banking Days after filing with (or, to the extent the Company is a reporting company under the Securities and Exchange CommissionAct, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or such shorter period as shall be required to file with under the applicable rules of the Securities and Exchange Commission under Section 13 or 15(dfor the filing of its quarterly report on Form 10-Q), duplicate copies of
(i) consolidated and consolidating balance sheets of the Securities Exchange Act Company and its consolidated Subsidiaries as at the end of 1934each such quarter, as amendedand
(ii) consolidated and consolidating statements of operations and of cash flows of the Company and its consolidated Subsidiaries for such quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such quarter, setting forth in each case in comparative form the figures for the corresponding period in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to quarterly financial statements generally, and not otherwise required certified by a Senior Financial Officer as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows, subject to be delivered to changes resulting from normal, recurring, year end audit adjustments and the Lenders pursuant to other provisions absence of this Section 7.1GAAP notes thereto;
(fb) Promptly Annual Statements — promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming awarethe same are available, and in any event within five (5) Banking Days 90 days after becoming aware, the end of each fiscal year of the occurrence Company (or, to the extent the Company is a reporting company under the Securities Act, such shorter period as shall be required under the applicable rules of any the Securities and Exchange Commission for the filing of its annual report on Form 10-K), duplicate copies of
(i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days consolidated and consolidating balance sheets of the occurrence Company and its consolidated Subsidiaries as at the end of such event) or year, and
(ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 consolidated and consolidating statements of ERISA or Section 4975 operations and stockholders’ equity and of cash flows of the CodeCompany and its consolidated Subsidiaries for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP, and accompanied by, in respect of such financial statements of the Company and its consolidated Subsidiaries:
(A) involving any Pension Plan an opinion thereon of BDO Xxxxxxx, LLP or any trust created thereunderother independent certified public accountants of nationally recognized standing reasonably acceptable to the Required Holders, telephonic notice specifying which opinion shall not contain any qualification arising out of the nature thereofscope of the audit and shall state that such financial statements present fairly, andin all material respects, no more than two (2) Banking Days after the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, and that the examination of such telephonic noticeaccountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, written notice again specifying and that such audit provides a reasonable basis for such opinion in the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;circumstances,
(hB) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware an executive summary of the existence of any condition or event which constitutes management letter prepared by such accountants; provided, however, that if a Default or Event of DefaultDefault shall have occurred and shall be continuing, telephonic notice specifying the nature full text of such management letter shall be provided to MetLife and period each holder of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Notes that is $250,000 or more in excess of the amount thereof that is fully covered by insurancean Institutional Investor, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(jC) Such other data and information as from time to time a certificate of such accountants stating whether they obtained knowledge during the course of their examination of such financial statements of any Default or Event of Default (which certificate may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (limited to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof required by accounting rules or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.guidelines);
Appears in 1 contract
Samples: Master Note Purchase Agreement
Financial and Business Information. So long as any Advance ---------------------------------- remains unpaid, or any Letter of Credit remains outstanding or any other Obligation remains unpaid, or any portion of any of the Commitments Commitment remains in force, Borrower shall, unless the Administrative Managing Agent (with the written approval of the Requisite LendersBanks) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Managing Agent for distribution by it to the LendersBanks, a sufficient number of copies for all of the Lenders Banks of the following:
(ia) As soon as practicable, and in any event by the tenth Banking Day in the next following month, a construction progress report as of the last day of the preceding calendar month during the Construction Period in a form reasonably acceptable to the Managing Agent, which report shall compare the status of construction and amounts expended to the Construction Timetable and the Construction Budget; provided that the construction progress -------- reports delivered by CSG pursuant to Section 7.7 shall satisfy the form of --- this requirement unless the Managing Agent notifies Borrower to the contrary;
(b) As soon as practicable, and in any event by the fifteenth Banking Day in the next following month, an operating revenue report for the preceding calendar month (commencing with the first full calendar month after the Completion Date) in a form reasonably acceptable to the Managing Agent, together with a written narrative statement discussing any significant trends reflected therein signed by a Senior Officer of Borrower;
(c) As soon as practicable, and in any event within fifty (50) 60 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any ----- ---- Fiscal Year), (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and (ii) if applicable and if requested by the Managing Agent, the consolidating balance sheets and statements of operations as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than ----- ---- footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(id) As soon as practicable, and in any event within one hundred 45 days after the end of each Fiscal Quarter, a Pricing Certificate setting forth a preliminary calculation of the Guarantor Funded Debt Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of the Guarantors for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Guarantor Funded Debt Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(100e) As soon as practicable, and in any event within 105 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ members' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year and (ii) if applicable and if requested by the Managing Agent, consolidating balance sheets and statements of operations, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP one of the six largest public accounting firms in the United States of America or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite LendersBanks, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Banks in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Banks. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.11 through ---- 6.13, have read such Sections (including the definitions of all defined ---- terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cf) As soon as practicable, and in any event not later than sixty (60) within 45 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next four succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected consolidated --------- balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows, of Borrower and its Subsidiaries, all in reasonable detail;
(dg) Promptly after request by the Administrative Managing Agent or any LenderBank, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Borrower by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(ei) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any either of its Subsidiariesthe Guarantors, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any either of its Subsidiaries the Guarantors may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders Banks pursuant to other provisions of this Section 7.1Section;
(fj) Promptly after request by Lenderthe Managing Agent or any Bank, subject to confidentiality requirements copies of the Nevada "Regulation 6.090 Report" and "6-A Report";
(k) Promptly after request by the Managing Agent or any Governmental AgencyBank, copies of any other report or other document that was filed by Borrower, Borrower or any of its Subsidiaries with any Governmental Agency;
(gl) Promptly upon a Senior Officer of Borrower, becoming awareAs soon as practicable, and in any event within five ten (510) Banking Days after becoming aware, a Senior Officer of Borrower becomes aware of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving in connection with any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower or any of its Subsidiaries is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hm) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is or its Subsidiaries are taking or proposes propose to take with respect thereto;
(in) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 5,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a written credit agreement or material lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries orSubsidiaries, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 5,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, (iv) any labor union has notified Borrower of its intent to strike Borrower or any of its Subsidiaries on a date certain and such strike would involve more than 100 employees of Borrower or its Subsidiaries, or (v) any Gaming Board has indicated its intent to consider or act upon a License Revocation or a fine or penalty of $1,000,000 or more with respect to Borrower or any of its Subsidiaries, a written notice describing the pertinent facts relating thereto and what action Borrower and/or or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(jo) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Managing Agent, any Bank (through the Managing Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsBanks.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation (other than indemnity obligations for which no claim has been made) remains unpaidunpaid or unperformed, or any portion of any of the Commitments Commitment remains in force, Borrower the Company shall, unless the Administrative Agent (with the written approval of the Requisite LendersMajority Banks) otherwise consents, at Borrower’s sole expenseconsents in writing, deliver to the Banks and the Administrative Agent for distribution by it to Agent, at the Lenders, a sufficient number of copies for all of the Lenders of the followingCompany’s sole expense:
(ia) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet sheets of Borrower the Company and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and Quarter, (ii) consolidated statements of incomeincome and (iii) consolidated statements of cash flow, operations in each case described in clauses (ii) and cash flows (iii) of this Section 7.1(a) of the Company and its Subsidiaries for such Fiscal Quarter, Quarter and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by a Senior Officer of the president or chief financial officer of Borrower Company as fairly presenting the financial condition, results of operations and cash flows changes in financial position of Borrower the Company and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than any requirement for footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred (100) 90 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet sheets of Borrower the Company and its Subsidiaries as at the end of such Fiscal Year and the consolidating and Year, (ii) consolidated statements of income, operations, stockholders’ equity income of the Company and its Subsidiaries for such Fiscal Year and (iii) consolidated statements of cash flows, in each case flow of Borrower the Company and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently appliedGenerally Accepted Accounting Principles, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report and opinion of PricewaterhouseCoopers LLP Ernst & Young or other independent public accountants of recognized national standing selected by Borrower and reasonably satisfactory to the Requisite LendersCompany, which report and opinion shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders shareholders of Borrower or any of its Subsidiariesthe Company generally, and copies of all annual, regular, periodic periodic, current and special reports and registration statements which Borrower the Company or any a Subsidiary of its Subsidiaries the Company may file or be required to file with the Securities and Exchange Commission under Section Sections 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fd) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming awarePromptly, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware the Company obtains actual knowledge of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower the Company or any of its Subsidiaries is taking or proposes to take with respect thereto;
(ie) Promptly upon a Senior Officer of Borrower becoming aware that of the occurrence of any ERISA Event defined in clauses (i) any Person has commenced a legal proceeding with respect through (vii) or (xi) of the definition thereof involving Title IV of ERISA that could reasonably be expected to a claim against Borrower result in material liability to the Company or its Subsidiaries or any of its Subsidiaries ERISA Event that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may could reasonably be expected to result in a Material Adverse Effect, a written notice describing specifying the pertinent facts relating thereto and nature thereof, what action Borrower and/or the Company or any of its applicable Subsidiaries are ERISA Affiliates has taken, is taking or propose proposes to take with respect thereto and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto;
(f) With reasonable promptness, copies of (a) each Schedule SB (Actuarial Information) to the annual report, if any (Form 5500 Series), filed by the Company or any of its Current ERISA Affiliates with the Internal Revenue Service with respect to each Pension Plan following the Administrative Agent’s request; (b) all notices received by the Company or any of its Current ERISA Affiliates from the sponsor of a Multiemployer Plan to which a Current ERISA Affiliate contributes concerning an ERISA Event defined in clauses (i) through (vii) or (xi) of the definition thereof following the receipt thereof; and (c) such other documents or governmental reports or filings relating to any Employee Benefit Plan as the Administrative Agent shall reasonably request; and
(jg) Such other data and material information related to any Borrower’s ability to meet its Obligations hereunder as from time to time may be reasonably requested by the Administrative Agent or the Requisite LendersMajority Banks. Information Documents required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with or furnished to the Securities and Exchange Commission) Commission and available to the public may be delivered electronically and if so delivered), shall be deemed to have been delivered for all purposes of this Agreement on the date (ai) on which Borrower the Company posts such documents, or provides notice to Lenders that such information has been posted a link thereto on Borrowerthe Company’s website on the Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, Schedule 13.7; or (bii) on which such documents are posted on Borrowerthe Company’s behalf on IntraLinks/IntraAgency or another relevant website (including, without limitation, the Platform; provided that (i) Company shall notify XXXXX System), if any, to which each Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent). The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request for delivery, and each Lender (by telecopier Bank shall be solely responsible for requesting delivery to it or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) maintaining its copies of such documents.
Appears in 1 contract
Samples: Credit Agreement (Amgen Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, unpaid or any portion of any of the Commitments Commitment remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 60 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter and (ii) the consolidating (in accordance with past consolidating practices of Borrower) balance sheets and statements of operations as at and for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred (100) 105 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year and (ii) consolidating (in accordance with past consolidating practices of Borrower) balance sheets and statements of operations, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptionsexceptions as to the scope of the audit nor to any other qualification or exception determined by the Requisite Lenders in their good faith business judgment to be adverse to the interests of the Lenders. Unless such independent public accountants do not, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process as a matter of management firm policy, generally provide similar information at the request of accountstheir audit clients, (ii) such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing described in Sections 9.1(a), (b), (c), or (f) or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Borrower by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(ed) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(je) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Term Loan Agreement (Aztar Corp)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments Commitment remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) [Intentionally Omitted];
(b) [Intentionally Omitted];
(c) As soon as practicable, and in any event within fifty (50) 45 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations income and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(id) As soon as practicable, and in any event within one hundred (100) 90 days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity income and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP Arthxx Xxxexxxx XXX or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lendersstanding, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations exceptions as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention scope of such accountants the audit nor to any other qualification or exception determined by the Requisite Lenders in the course of such examination that would cause them their good faith business judgment to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver be adverse to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation interests of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of themLenders;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, Borrower with any Governmental Agency; provided that neither Borrower nor any of its Subsidiaries shall be obligated to provide any information that is "classified" under applicable Laws;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five ten (510) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 5,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 5,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 5,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 5,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are is taking or propose proposes to take with respect thereto;
(j) Promptly upon a Senior Officer becoming aware of a change in the credit rating given by S&P or Moodx'x xx Borrower's long term senior unsecured non-credit enhanced debt, written notice thereof; and
(jk) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company neither Borrower nor any of its Subsidiaries shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of be obligated to provide any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsinformation that is "classified" under applicable Laws.
Appears in 1 contract
Samples: Revolving Loan Agreement (Usec Inc)
Financial and Business Information. So long as any Advance ---------------------------------- remains unpaid, or any Letter of Credit remains outstanding or any other Obligation remains unpaid, or any portion of any of the Commitments Commitment remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite LendersBanks) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the LendersBanks, a sufficient number of copies for all of the Lenders Banks of the following:
(ia) As soon as practicable, and in any event within fifty (50) 60 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidated and consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidated and consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote ----- ---- disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred 45 days after the end of each Fiscal Quarter, a Pricing Certificate setting forth a preliminary calculation of the Leverage Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof, which calculations shall be based on the preliminary unaudited financial statements of Borrower for such Fiscal Quarter, and as soon as practicable thereafter, in the event of any material variance in the actual calculation of the Leverage Ratio from such preliminary calculation, a revised Pricing Certificate setting forth the actual calculation thereof;
(100c) As soon as practicable, and in any event within 105 days after the end of each Fiscal Year, (i) the consolidated and consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidated and consolidating and consolidated statements of income, operations, stockholders’ shareholders' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP one of the six largest public accounting firms in the United States of America or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite LendersBanks, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Banks in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Banks. Such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.136.11 ---- through 6.14, have read such Sections (including the definitions of all ---- defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(cd) As soon as practicable, and in any event not later than sixty (60) within 45 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next two succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, --------- projected consolidated balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows, of Borrower and its Subsidiaries, all in reasonable detail;
(de) Promptly after request by the Administrative Agent or any LenderBank, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Borrower by independent accountants in connection with the accounts or books of Borrower, Borrower or any of its Subsidiaries, or any audit of any of them;
(ef) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders Banks pursuant to other provisions of this Section 7.1Section;
(fg) Promptly after request by Lenderthe Administrative Agent or any Bank, subject to confidentiality requirements copies of the Nevada "Regulation 6.090 Report" and "6-A Report";
(h) Promptly after request by the Administrative Agent or any Governmental AgencyBank, copies of any other report or other document that was filed by Borrower, Borrower or any of its Subsidiaries with any Governmental AgencyAgency (other ----- than any report regarding Tracinda Corporation or individuals associated with Tracinda Corporation, Borrower and its Subsidiaries and their confidential business or financial information);
(gi) Promptly upon a Senior Officer of Borrower, becoming awareAs soon as practicable, and in any event within five ten (510) Banking Days after becoming aware, a Senior Officer of Borrower becomes aware of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving in connection with any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower or any of its Subsidiaries is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hj) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is or its Subsidiaries are taking or proposes propose to take with respect thereto;
(ik) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 5,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a written credit agreement or material lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries orSubsidiaries, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 5,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, (iv) any labor union has notified Borrower of its intent to strike Borrower or any of its Subsidiaries on a date certain and such strike would involve more than 100 employees of Borrower or its Subsidiaries, or (v) any Gaming Board has indicated its intent to consider or act upon a License Revocation or a fine or penalty of $1,000,000 or more with respect to Borrower or any of its Subsidiaries, a written notice describing the pertinent facts relating thereto and what action Borrower and/or or its applicable Subsidiaries are taking or propose to take with respect thereto;
(l) As soon as practicable, and in any event by the thirtieth day in the next following month, a construction progress report with respect to the MGM Grand - Atlantic City as of the last day of the preceding calendar month in a form reasonably acceptable to the Administrative Agent, which report shall compare the status of construction and amounts expended to the construction timetable and budget;
(m) As soon as practicable, and in any event by the thirtieth day in the next following month, an operating revenue report for the preceding calendar month with respect to each operating casino property of Borrower and its Subsidiaries (including New York and the Australia Companies), segmented for each such casino property and otherwise in a form reasonably acceptable to the Administrative Agent, together with a written narrative statement discussing any significant trends reflected therein signed by a Senior Officer of Borrower;
(n) Promptly following receipt thereof, copies of all changes to the construction plans, budget, timetable and the related architectural, construction and engineering contracts for the MGM Grand - Atlantic City, and with an advance draft copy of any proposed such change that involves more than $10,000,000; and
(jo) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Bank (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsBanks.
Appears in 1 contract
Samples: Loan Agreement (MGM Grand Inc)
Financial and Business Information. So long as any Advance remains unpaid, Seller shall deliver or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver cause to the Administrative Agent for distribution by it be delivered to the Lenders, a sufficient number of copies for all of the Lenders of FGI the following:
a. Financial Statements and Collateral Reports: such data, reports, statements and information, financial or otherwise, as FGI may reasonably request, including, without limitation:
i. within thirty (i) As soon as practicable, and in any event within fifty (5030) days after the end of each Fiscal Quarter calendar month, the consolidated and consolidating (if applicable) income and cash flow statements of Seller and its Subsidiaries for such month and for the expired portion of the fiscal year ending March 31, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30, 2005), end of such month and the consolidated and consolidating and consolidated (if applicable) balance sheet of Borrower Seller and its Subsidiaries as at the end of such Fiscal Quarter month, setting forth in comparative form the corresponding figures as at the end of and for the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion corresponding periods of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarterprevious fiscal year, all in reasonable detail, (ii) such financial statements shall be including all supporting schedules and certified by the president or Seller’s chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries to have been prepared in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.GAAP;
(i) As soon as practicable, and in any event ii. within one hundred and five (100105) days after the end of each Fiscal Yearfiscal year of Seller, the consolidated and consolidating (if applicable) income and cash flow statements of Seller and its Subsidiaries for such year, and the consolidated and consolidating (if applicable) balance sheet of Borrower Seller and its Subsidiaries as at the end of such Fiscal Year fiscal year, setting forth in comparative form the corresponding figures as at the end of and for the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Yearprevious fiscal year, all in reasonable detail. Such financial statements shall be , including all supporting schedules, and audited by an independent public accounting firm acceptable to FGI, and unqualifiedly certified to have been prepared in accordance with GAAP, consistently appliedtogether with copies of any management letters provided by such accountants to management of Seller;
iii. on the first Business Day of each calendar week (as of the last Business Day of the prior calendar week), Seller’s accounts receivable aging report, accounts payable aging report, Inventory reports and such consolidated other reports as FGI reasonably deems necessary, certified by Seller’s chief financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower officer as true and correct, all in form and substance reasonably satisfactory to FGI;
iv. on the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards first Business Day of each calendar week (as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation last Business Day of the foregoing reportprior calendar week), pursuant for each Account Debtor who is indebted on a Purchased Account that has been purchased, a weekly report in a form and substance satisfactory to which separate report FGI itemizing all such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, allowances made during the previous week with respect such Purchased Accounts and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, at FGI’s option a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower check (or its board of directorswire transfer) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent payable to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of FGI for the amount thereof that is fully covered by insuranceor in FGI’s sole and exclusive discretion, (ii) any creditor under FGI may accept the issuance of a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on memo and apply same to the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect theretoReserve Account; and
v. no later than thirty (j30) Such other data and information as from time days prior to time may be reasonably requested by each fiscal year-end, Seller’s annual consolidated financial statement projections for the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsupcoming fiscal year.
Appears in 1 contract
Samples: Sale of Accounts and Security Agreement (Intercloud Systems, Inc.)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(i) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30, 2005), the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
(i) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed BorrowerXxxxxxxx’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by LenderXxxxxx, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of BorrowerXxxxxxxx, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower Xxxxxxxx becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, or any Letter of Credit remains outstanding or any other Obligation remains unpaid, or any portion of any of the Commitments either Commitment remains in force, Borrower and each Co-Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s and the Co- Borrowers’ sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) 60 days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements statement of income, operations and cash flows for such Fiscal Quarter, and its statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred (100) 105 days after the end of each Fiscal Year, (i) the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholdersshareholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, in each case as at the end of and for the Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial balance sheet and consolidated statements shall be accompanied by a report of PricewaterhouseCoopers LLP one of the four largest public accounting firms in the United States of America or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose exceptions as to the scope of the audit nor to any changes discovered other qualification or exception determined by such accountants the Requisite Lenders in Borrower’s or its Subsidiaries’ applicable process their good faith business judgment to be adverse to the interests of management of accounts, (ii) such the Lenders. Such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 6.5 and 6.136.6, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(c) As soon as practicable, and in any event not later than sixty (60) within 90 days subsequent to after the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next two succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected consolidated balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows, of Borrower and its Subsidiaries, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesBorrower, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1Section;
(e) Promptly after request by the Administrative Agent or any Lender, copies of the Nevada “Regulation 6.090 Report”;
(f) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, Borrower or any of its Subsidiaries with any Governmental AgencyAgency (other than any report regarding Tracinda Corporation or individuals associated with Tracinda Corporation, Borrower and its Subsidiaries and their confidential business or financial information);
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking five Business Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking three Business Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.;
Appears in 1 contract
Samples: Loan Agreement (MGM Mirage)
Financial and Business Information. So long as any Advance or Letter of Credit remains unpaid, or any other non-contingent Obligation remains unpaidunpaid or unperformed, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) Lenders otherwise consentsconsent, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders (or one copy for the Administrative Agent if such information or documents are to be distributed via a Platform) of the following:
(ia) As soon as practicable, and in any event within fifty the earlier of (50i) forty five (45) days after the end of each of the first three Fiscal Quarter ending March 31, June 30 and September 30 Quarters in each Fiscal Year (commencing with the third Fiscal Quarter ending June 30, 2005)of 2004) and (ii) five (5) days after the date required for filing with the Securities and Exchange Commission, the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such detail and setting forth in each case in comparative form the corresponding consolidated current Fiscal Quarter and year-to-date figures for the corresponding period in the preceding Fiscal Year and the consolidated figures for the corresponding period in the applicable projections. Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower as fairly presenting in all material respects the financial condition, results of operations and cash flows of Borrower Borrower, Parent and its their collective Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred the earlier of (100i) eighty-five (85) days after the end of each Fiscal YearYear and (ii) five (5) days after the date required for filing with the Securities and Exchange Commission, the consolidating and audited consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Year and the consolidating and audited consolidated statements of income, operations, stockholders’ equity and cash flows, in each case of Borrower Parent and its Subsidiaries for such Fiscal Year, all in reasonable detaildetail and setting forth in each case in comparative form the corresponding consolidated current Fiscal Quarter and year-to-date figures for the corresponding period in the preceding Fiscal Year and the consolidated figures for corresponding period in the applicable projections. Such financial statements shall be certified by a Senior Officer of Borrower as fairly presenting in all material respects the financial condition, results of operations and cash flows of Borrower, Parent and their collective Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers Deloitte & Touche LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite LendersAdministrative Agent, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).;
(c) As soon as practicable, and in any event not later than sixty (60) days subsequent to after the commencement of each Fiscal Year, a budget copy of the projected consolidated financial statements of Borrower, Parent and projection of Borrower and its their collective Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual a quarterly basis for each succeeding Fiscal Year thereafter through the Maturity DateDate together with narrative assumptions, including, in each case, projected consolidated balance sheets, statements of operations income and retained earnings and statements of cash flowflow of Borrower, Parent and their collective Subsidiaries, all in reasonable detaildetail and in any event to include (A) projected Capital Expenditures and (B) annual Fiscal Year projections of Borrower’s compliance with each of the covenants set forth in Sections 6.12, 6.13, 6.14 and 6.15 of this Agreement;
(d) Promptly after request by By the Administrative Agent due date for the Compliance Certificate for the Fiscal Quarter (or any Lenderin the case of the fourth Fiscal Quarter, the Compliance Certificate for the Fiscal Year) in which such items are delivered to Borrower or Parent, copies of (i) any material detailed audit reports, reports and (ii) any management letters or material recommendations submitted to Borrower or Parent (or its their respective board of directors) by independent accountants in connection with the accounts or books of Borrower, Parent or any of its their collective Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower Borrower, Parent or any of its their collective Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower Borrower, Parent or any of its their collective Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;7.1 which reports or filings may be sent via electronic mail or Borrower may send a notice to the Agent and the Lenders that such reports or filings have been made with the Securities and Exchange Commission.
(f) Promptly after the reasonable request by Lender, subject to confidentiality requirements of any Governmental AgencyLender through the Administrative Agent, copies of any other report or other document that was filed by Borrower, Parent or any of their collective Subsidiaries, with any Governmental Agency;
(g) Promptly upon a Senior Officer of BorrowerBorrower or Parent, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) By the due date for the Compliance Certificate for the Fiscal Quarter (or in the case of the fourth Fiscal Quarter, the Compliance Certificate for the Fiscal Year) in which a Senior Officer of Borrower becomes aware that any Person has commenced a legal proceeding with respect to a claim against Borrower, Parent or any of their Subsidiaries in which the claimant alleges damages in an amount that is equal to or greater than $2,500,000 but less than $10,000,000 in excess of the amount thereof that is fully covered by insurance, a written notice describing the pertinent facts relating thereto and what action Borrower, Parent and/or their applicable Subsidiaries are taking or propose to take with respect thereto;
(j) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower Borrower, Parent or any of its their Subsidiaries in which the claimant alleges damages in an amount that is $250,000 10,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 1,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 1,000,000 or more has asserted a default thereunder on the part of Borrower Borrower, Parent or any of its Subsidiaries ortheir Subsidiaries, or (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower Borrower, Parent or any of its their Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 1,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower Borrower, Parent and/or its their applicable Subsidiaries are taking or propose to take with respect thereto;
(k) Promptly upon a Senior Officer of Borrower or Parent, becoming aware, and in any event within five (5) Banking Days after becoming aware, that any Person or Persons have entered into one or more contracts or an arrangement that, upon consummation, will result in a Change in Control, a written notice with reasonable detail regarding such contracts or arrangement, including the parties involved, the financial terms, the amount of capital stock or other equity interest involved in such contracts or arrangement and the proposed closing date for such contracts or arrangement;
(i) As soon as practicable, and in any event not less than 5 days prior to the proposed effective date thereof, written notice of any proposed amendment, modification or waiver of the terms and provisions of any of the Material Contracts, which amendment, modification or waiver could reasonably be expected to be adverse to the Lenders in any material respect and (ii) as soon as practicable, and in any event not less than 10 days prior to the proposed effective date thereof, written notice of any proposed amendment, modification or waiver of the terms and provisions of any of the Material Governing Documents;
(m) As soon as practicable, and in any event within eighty (80) days after the end of each Fiscal Quarter in each Fiscal Year (commencing with the third Fiscal Quarter of 2004), a detailed report of store/location information and operating data of Parent and its Subsidiaries on a year-to-date basis, including, without limitation, square footage, sales, gross profit and contribution, in form and substance reasonably satisfactory to the Administrative Agent;
(n) As soon as practicable, and in any event at least thirty (30) days before the acquisition of any Potential Real Estate Collateral, written notice describing the acquisition of such Potential Real Estate Collateral including a description of and the location of such Potential Real Estate Collateral and a reasonable approximation of the Acquisition Cost of such Potential Real Estate Collateral; and
(jo) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Credit Agreement (West Marine Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any Letter of Credit remains outstanding, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower Borrowers shall, unless the Administrative Agent (with the written approval of the Requisite LendersBanks) otherwise consents, at Borrower’s Borrowers' sole expense, deliver to the Administrative Agent for distribution by it to the LendersBanks, a sufficient number (but not more than ten) of copies for all of the Lenders Banks of the following:
(ia) As soon as practicable, and in any event within fifty forty-five (5045) days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or chief financial officer a Senior Officer of Borrower Parent as fairly presenting the financial condition, results of operations and cash flows of Borrower Parent and its Subsidiaries in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within forty-five (45) days after the end of each Fiscal Quarter, a certificate setting forth a calculation of the Leverage Ratio as of the last day of such Fiscal Quarter, and providing reasonable detail as to the calculation thereof;
(c) As soon as practicable, and in any event within forty-five (45) days after the end of each Fiscal Quarter, statements of operating income for such Fiscal Quarter and Fiscal Year to date for each of the Revenue-Producing Properties in the Unencumbered Asset Pool and a summary Rent Roll for each of the Revenue-Producing Properties in the Unencumbered Asset Pool, each in reasonable detail;
(d) All written information provided to shareholders of Parent;
(e) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower Parent and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower Parent and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAPGenerally Accepted Accounting Principles, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP KPMG or other independent public accountants of recognized standing selected by Borrower Parent and reasonably satisfactory to the Requisite LendersBanks, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations exceptions as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention scope of such accountants the audit nor to any other qualification or exception determined by the Requisite Banks in the course of such examination that would cause them their good faith business judgment to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver be adverse to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation interests of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).Banks;
(cf) As Upon request by Administrative Agent, as soon as practicable, and in any event not later than sixty (60) days subsequent to before the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis by Fiscal Year for each the next two succeeding Fiscal Year thereafter through Years, including for the Maturity Datefirst such Fiscal Year, projected consolidated balance sheets, statements of operations and statements of cash flowflow and, for the second and third such Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows, of Parent and its Subsidiaries, all in reasonable detail;
(dg) Promptly after request by the Administrative Agent or any LenderBank, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Parent by independent accountants in connection with the accounts or books of Borrower, Parent or any of its Subsidiaries, or any audit of any of them;
(eh) Promptly after the same are available, and in any event within five ten (510) Banking Days days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders Banks pursuant to other provisions of this Section 7.1;
(fi) Promptly after request by Lender, subject to confidentiality requirements of the Administrative Agent or any Governmental AgencyBank, copies of any other material report or other document that was filed by Borrower, Borrowers with any Governmental Agency;
(gj) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is Borrowers are taking or proposes propose to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hk) As soon as practicable, and in any event within two five (25) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is Borrowers are taking or proposes propose to take with respect thereto;
(il) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Borrowers that is $250,000 1,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 1,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 1,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries Borrowers or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Borrowers under a contract (that is not a credit agreement or material lease with respect to a claim of lease) in excess of $250,000 1,000,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries Borrowers are taking or propose to take with respect thereto;
(m) [Intentionally Omitted.]
(n) Not later than forty- five (45) days after the end of each fiscal quarter of the Borrowers (including the fourth fiscal quarter in each year), a list (which may be included in the Compliance Certificates) setting forth the following information with respect to each new Subsidiary or Controlled Entity of any of the Borrowers: (i) the name, structure and ownership of the Subsidiary or Controlled Entity, (ii) a description of the property owned by such Subsidiary or Controlled Entity, and (iii) such other information as the Administrative Agent may reasonably request;
(o) Simultaneously with the delivery of the financial statements referred to in Section 7.1(e) above (if such information is not otherwise included in the financial statements or other information presented to the Banks pursuant to this Section 7.1), a statement (which may be included in the Compliance Certificates) listing (i) the Real Property owned by Parent and its Subsidiaries (or in which Parent or its Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, (ii) the Indebtedness of Parent and its Subsidiaries, which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non-recourse, and (iii) the properties of Parent and its respective Subsidiaries which are Development Properties and providing a brief summary of the status of such development;
(p) When and as required by Section 2.11, the information regarding each Qualified Unencumbered Asset Pool Property, as more particularly described in Section 2.11;
(q) When and as required by Section 5.17(c), the information regarding the Unencumbered Asset Pool, as more particularly described in Section 5.17(c); and
(jr) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Bank (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documentsBanks.
Appears in 1 contract
Financial and Business Information. So long as any Advance remains unpaid, unpaid or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(ia) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with other than the fourth Fiscal Quarter ending June 30, 2005in any Fiscal Year), the consolidating and quarterly unaudited consolidated financial statements, including a consolidated balance sheet sheet, income statement and statement of Borrower and its Subsidiaries cash flows of the Consolidated Group as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such . Such financial statements shall be certified by the president or Parent’s chief financial officer of Borrower or chief accounting officer as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries the Consolidated Group in accordance with GAAP Generally Accepted Accounting Principles (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-year end accruals and audit adjustments.;
(ib) As soon as practicable, and in any event within one hundred fifty (10050) days after the end of each Fiscal YearQuarter, a Compliance Certificate as of the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end last day of such Fiscal Year and the consolidating and consolidated statements of incomeQuarter, operations, stockholders’ equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in providing reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory detail as to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s or its Subsidiaries’ applicable process of management of accounts, (ii) such accountants’ report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “management letter” prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).calculation thereof;
(c) As soon as practicable, and in any event not later than sixty within fifty (6050) days subsequent after the end of each Fiscal Quarter, statements of operating income for such Fiscal Quarter and Fiscal Year to date for the Subject Property and a complete Project roster, each in such detail as the Administrative Agent may reasonably require
(d) All written information provided to shareholders of Parent;
(e) Upon request by the Administrative Agent, as soon as practicable, and in any event before the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flowConsolidated Group, all in reasonable detail;
(df) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower the board of directors (or its the audit committee of the board of directors) of Parent by independent accountants in connection with the accounts or books of Borrower, Parent or any other member of its Subsidiariesthe Consolidated Group, or any audit of any of them;
(eg) Promptly after the same are available, and in any event within five ten (510) Banking Days days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its SubsidiariesParent, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries Parent may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(fh) Promptly after request by the Administrative Agent or any Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other material report or other document that was filed by Borrower, the Consolidated Group with any Governmental Agency;
(gi) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “reportable event” (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-non exempt “prohibited transaction” (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower the Consolidated Group is taking or proposes propose to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(hj) As soon as practicable, and in any event within two five (25) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two five (25) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower the Consolidated Group is taking or proposes propose to take with respect thereto;
(ik) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Loan Party that is $250,000 5,000,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 5,000,000 or more or any lessor under a lease involving aggregate rent of $250,000 5,000,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries Loan Party or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries Loan Party under a contract (that is not a credit agreement or material lease with respect to a claim of lease) in excess of $250,000 5,000,000 or which otherwise may reasonably be expected to result in would constitute a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries the Loan Parties are taking or propose to take with respect thereto;
(l) As soon as practicable, and in any event within thirty (30) days after the end of each calendar month, a monthly rent roll and operating statement for the Subject Property, all in reasonable detail;
(m) Not later than fifty (50) days after the end of each fiscal quarter of the Consolidated Group (including the fourth fiscal quarter in each year), a list (which may be included in the Compliance Certificates) setting forth the following information with respect to each new Subsidiary or Controlled Entity of any of the Loan Parties: (i) the name, structure and ownership of the Subsidiary or Controlled Entity, (ii) a description of the property owned by such Subsidiary or Controlled Entity, and (iii) such other information as the Administrative Agent may reasonably request;
(n) Simultaneously with the delivery of the financial statements to Administrative Agent (if such information is not otherwise included in the financial statements or other information presented to the Lenders pursuant to this Section 7.1), a statement (which may be included in the Compliance Certificates) listing (i) the Projects owned by the Consolidated Group (or in which the Consolidated Group owns an interest) and stating the location thereof, the date acquired and the acquisition cost (with respect to each new Project), (ii) the Indebtedness of the Consolidated Group, which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non recourse, and (iii) the Projects of the Consolidated Group which are Unstabilized Projects and providing a brief summary of the status of such development; and
(jo) Such other data and information as from time to time may be reasonably requested by the Administrative Agent Agent, any Lender (through the Administrative Agent) or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Samples: Secured Bridge Loan Agreement (BioMed Realty Trust Inc)
Financial and Business Information. So long as any Advance remains unpaid, or any other Obligation remains unpaid, or any portion of any of the Commitments remains in force, Borrower shall, unless the Administrative Agent (with the written approval of the Requisite Lenders) otherwise consents, at Borrower’s 's sole expense, deliver to the Administrative Agent for distribution by it to the Lenders, a sufficient number of copies for all of the Lenders of the following:
(i) As soon as practicable, and in any event within fifty (50) days after the end of each Fiscal Quarter ending March 31, June 30 and September 30 (commencing with the Fiscal Quarter ending June 30, 20052002), the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidating and consolidated statements of income, operations and cash flows for such Fiscal Quarter, and the portion of the Fiscal Year ended with such Fiscal Quarter, together with a statement of Stockholders’ ' Equity as of the last day of such Fiscal Quarter, all in reasonable detail, (ii) such financial statements shall be certified by the president or chief financial officer of Borrower as fairly presenting the financial condition, results of operations and cash flows of Borrower and its Subsidiaries in accordance with GAAP (other than footnote disclosures), consistently applied, as at such date and for such periods, subject only to normal year-end accruals and audit adjustments.
(i) As soon as practicable, and in any event within one hundred (100) days after the end of each Fiscal Year, the consolidating and consolidated balance sheet of Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidating and consolidated statements of income, operations, stockholders’ ' equity and cash flows, in each case of Borrower and its Subsidiaries for such Fiscal Year, all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP, consistently applied, and such consolidated financial statements shall be accompanied by a report of PricewaterhouseCoopers LLP or other independent public accountants of recognized standing selected by Borrower and reasonably satisfactory to the Requisite Lenders, which report shall be prepared in accordance with generally accepted auditing standards as at such date, and shall not be subject to any qualifications or exceptions, and which report shall specifically disclose any changes discovered by such accountants in Borrower’s 's or its Subsidiaries’ ' applicable process of management of accounts, (ii) such accountants’ ' report shall be accompanied by a certificate stating that, in making the examination pursuant to generally accepted auditing standards necessary for the certification of such financial statements and such report, such accountants have obtained no knowledge of any Default then existing or, if, in the opinion of such accountants, any such Default shall exist, stating the nature and status of such Default, and stating that such accountants have reviewed Borrower’s 's financial calculations as at the end of such Fiscal Year (which shall accompany such certificate) under Sections 6.12 and 6.13, have read such Sections (including the definitions of all defined terms used therein) and that nothing has come to the attention of such accountants in the course of such examination that would cause them to believe that the same were not calculated by Borrower in the manner prescribed by this Agreement, and (iii) in addition, Borrower shall deliver to the Administrative Agent a copy of (A) any “"management letter” " prepared by such accountants in conjunction with preparation of the foregoing report and (B) a separate report prepared by such accountants in conjunction with preparation of the foregoing report, pursuant to which separate report such accountants shall be required to disclose any material changes discovered by such accountants in the then current account management process (including the determination of returns and reserves, inventory management practices, and accounts receivable management practices).
(c) As soon as practicable, and in any event not later than sixty thirty (6030) days subsequent to the commencement of each Fiscal Year, a budget and projection of Borrower and its Subsidiaries setting forth (i) by Fiscal Quarter for the four (4) Fiscal Quarters of that Fiscal Year and (ii) on an annual basis for each succeeding Fiscal Year thereafter through the Maturity Date, projected balance sheets, statements of operations and statements of cash flow, all in reasonable detail;
(d) Promptly after request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to Borrower (or its board of directors) by independent accountants in connection with the accounts or books of Borrower, or any of its Subsidiaries, or any audit of any of them;
(e) Promptly after the same are available, and in any event within five (5) Banking Days after filing with the Securities and Exchange Commission, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of Borrower or any of its Subsidiaries, and copies of all annual, regular, periodic and special reports and registration statements which Borrower or any of its Subsidiaries may file or be required to file with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise required to be delivered to the Lenders pursuant to other provisions of this Section 7.1;
(f) Promptly after request by Lender, subject to confidentiality requirements of any Governmental Agency, copies of any other report or other document that was filed by Borrower, with any Governmental Agency;
(g) Promptly upon a Senior Officer of Borrower, becoming aware, and in any event within five (5) Banking Days after becoming aware, of the occurrence of any (i) “"reportable event” " (as such term is defined in Section 4043 of ERISA, but excluding such events as to which the PBGC has by regulation waived the requirement therein contained that it be notified within thirty days of the occurrence of such event) or (ii) non-exempt “"prohibited transaction” " (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) involving any Pension Plan or any trust created thereunder, telephonic notice specifying the nature thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature thereof and specifying what action Borrower is taking or proposes to take with respect thereto, and, when known, any action taken by the Internal Revenue Service with respect thereto; provided that no such notice shall be required pursuant to this Section 7.1(g) if the anticipated liability is less than $100,000;
(h) As soon as practicable, and in any event within two (2) Banking Days after a Senior Officer of Borrower becomes aware of the existence of any condition or event which constitutes a Default or Event of Default, telephonic notice specifying the nature and period of existence thereof, and, no more than two (2) Banking Days after such telephonic notice, written notice again specifying the nature and period of existence thereof and specifying what action Borrower is taking or proposes to take with respect thereto;
(i) Promptly upon a Senior Officer of Borrower becoming aware that (i) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries that is $250,000 or more in excess of the amount thereof that is fully covered by insurance, (ii) any creditor under a credit agreement involving Indebtedness of $250,000 or more or any lessor under a lease involving aggregate rent of $250,000 or more has asserted a default thereunder on the part of Borrower or any of its Subsidiaries or, (iii) any Person has commenced a legal proceeding with respect to a claim against Borrower or any of its Subsidiaries under a contract that is not a credit agreement or material lease with respect to a claim of in excess of $250,000 or which otherwise may reasonably be expected to result in a Material Adverse Effect, a written notice describing the pertinent facts relating thereto and what action Borrower and/or its applicable Subsidiaries are taking or propose to take with respect thereto; and
(j) Such other data and information as from time to time may be reasonably requested by the Administrative Agent or the Requisite Lenders. Information required to be delivered pursuant to this Section 7.1 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) shall be deemed to have been delivered on the date (a) on which Borrower provides notice to Lenders that such information has been posted on Borrower’s Internet website at the website address listed on the signature page hereof or at another website identified in such notice and accessible to Lenders without charge, or (b) on which documents are posted on Borrower’s behalf on the Platform; provided that (i) Company shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
