Financial Officer’s Certificate. The chief financial officer of the Borrower shall have furnished a certificate, dated the Closing Date, in form and substance satisfactory to the Administrative Agent, stating to the effect that: (a) The present fair saleable value of the assets of each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) exceeds the amount required to pay the probable liability on its existing debts, respectively (whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent), as they become absolute and matured, and as a result of the consummation of the transactions contemplated herein and in the Bank Book, will continue to exceed such amount; (b) Each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) does not, and, as a result of the consummation of the transactions contemplated in this Agreement, the other Financing Documents and the Bank Book, will not, have unreasonably small capital for it to carry on its business as proposed to be conducted; (c) Neither the Borrower nor any Subsidiary of the Borrower (other than CalGen Finance) is incurring obligations or making transfers under any evidence of indebtedness with the intent to hinder, delay or defraud any entity to which it is or will become indebted; and (d) Nothing has come to the Borrower's attention to cause it to believe that: (i) X.X. Xxxx is not qualified to pass on questions relating to the technical, environmental and economic aspects of the projects operated by the CalGen Companies as such projects are described in the Bank Book; (ii) the assumptions included in X.X. Xxxx'x report dated March 15, 2004, entitled "Independent Engineer's Report, Calpine Generating Company, LLC Facilities" (the "Xxxx Report"), are not reasonable; (iii) the information provided by the CalGen Companies to X.
Appears in 2 contracts
Samples: Credit and Guarantee Agreement (Calpine Corp), Credit and Guarantee Agreement (Delta Energy Center, LLC)
Financial Officer’s Certificate. The chief (i) Concurrently with any delivery of financial officer statements under Section 5.01(a) or (b), a Compliance Certificate (1) stating that such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of Borrower as of the date and for the periods specified in accordance with GAAP consistently applied, (2) certifying on behalf of Borrower shall have furnished that no Default has occurred or, if such a certificateDefault has occurred, dated specifying the Closing Datenature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (3) with respect to any financial statements under Section 5.01(a) or (b), setting forth computations in form and substance reasonable detail reasonably satisfactory to the Administrative AgentAgent demonstrating compliance with the Financial Covenants, stating to the effect that:
and, concurrently with any delivery of financial statements under Section 5.01(a) above, setting forth Borrower’s calculation of Excess Cash Flow, (a4) The present fair saleable value setting forth a list of all Immaterial Subsidiaries as of the assets date of such financial statements and certifying that all such Subsidiaries designated as Immaterial Subsidiaries comply with the requirements set forth in the definition of “Immaterial Subsidiaries” and (5) setting forth the calculation and uses of the Cumulative Amount (and each of the Borrower components thereof) for the fiscal period then ended; and each Subsidiary of the Borrower (other than CalGen Finance) exceeds the amount required to pay the probable liability on its existing debts, respectively (whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent), as they become absolute and matured, and as a result of the consummation of the transactions contemplated herein and in the Bank Book, will continue to exceed such amount;
(b) Each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) does not, and, as a result of the consummation of the transactions contemplated in this Agreement, the other Financing Documents and the Bank Book, will not, have unreasonably small capital for it to carry on its business as proposed to be conducted;
(c) Neither the Borrower nor any Subsidiary of the Borrower (other than CalGen Finance) is incurring obligations or making transfers under any evidence of indebtedness with the intent to hinder, delay or defraud any entity to which it is or will become indebted; and
(d) Nothing has come to the Borrower's attention to cause it to believe that: (i) X.X. Xxxx is not qualified to pass on questions relating to the technical, environmental and economic aspects of the projects operated by the CalGen Companies as such projects are described in the Bank Book; (ii) concurrently with any delivery of financial statements under Section 5.01(a) above, use commercially reasonable efforts to obtain a report of the assumptions included accounting firm opining on or certifying such financial statements stating that in X.X. Xxxx'x report dated March 15the course of its regular audit of the financial statements of Borrower and its Subsidiaries, 2004which audit was conducted in accordance with generally accepted auditing standards, entitled "Independent Engineer's Reportsuch accounting firm obtained no knowledge that any Default with respect to the Financial Covenants has occurred during such fiscal year or, Calpine Generating Companyif in the opinion of such accounting firm such a Default has occurred, LLC Facilities" specifying the nature and extent thereof; provided that, if such Compliance Certificate demonstrates that an Event of Default due to failure to comply with the Financial Covenants under Section 6.10 has not been cured prior to such time, Borrower may deliver, to the extent and within the time period permitted by Section 8.03, prior to or together with such Compliance Certificate, notice of its intent to cure (the "Xxxx Report"), are not reasonable; (iiia “Notice of Intent to Cure”) the information provided by the CalGen Companies to X.such Event of Default;
Appears in 2 contracts
Samples: Credit Agreement (Merge Healthcare Inc), Credit Agreement (Merge Healthcare Inc)
Financial Officer’s Certificate. The chief (i) Concurrently with any delivery of financial officer statements under Section 5.01(a) or (b), a Compliance Certificate (1) stating that such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of Borrower as of the date and for the periods specified in accordance with GAAP consistently applied, (2) certifying on behalf of Borrower shall have furnished that no Default has occurred or, if such a certificateDefault has occurred, dated specifying the Closing Datenature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (3) with respect to any financial statements under Section 5.01(a) or (b), setting forth computations in form and substance reasonable detail reasonably satisfactory to the Administrative AgentAgent demonstrating compliance with the Financial Covenant, stating to the effect that:
and, concurrently with any delivery of financial statements under Section 5.01(a) above, setting forth Borrower’s calculation of Excess Cash Flow, (a4) The present fair saleable value setting forth a list of all Immaterial Subsidiaries as of the assets date of such financial statements and certifying that all such Subsidiaries designated as Immaterial Subsidiaries comply with the requirements set forth in the definition of “Immaterial Subsidiaries” and (5) setting forth the calculation and uses of the Cumulative Amount (and each of the Borrower components thereof) for the fiscal period then ended; and each Subsidiary of the Borrower (other than CalGen Finance) exceeds the amount required to pay the probable liability on its existing debts, respectively (whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent), as they become absolute and matured, and as a result of the consummation of the transactions contemplated herein and in the Bank Book, will continue to exceed such amount;
(b) Each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) does not, and, as a result of the consummation of the transactions contemplated in this Agreement, the other Financing Documents and the Bank Book, will not, have unreasonably small capital for it to carry on its business as proposed to be conducted;
(c) Neither the Borrower nor any Subsidiary of the Borrower (other than CalGen Finance) is incurring obligations or making transfers under any evidence of indebtedness with the intent to hinder, delay or defraud any entity to which it is or will become indebted; and
(d) Nothing has come to the Borrower's attention to cause it to believe that: (i) X.X. Xxxx is not qualified to pass on questions relating to the technical, environmental and economic aspects of the projects operated by the CalGen Companies as such projects are described in the Bank Book; (ii) concurrently with any delivery of financial statements under Section 5.01(a) above, use commercially reasonable efforts to obtain a report of the assumptions included accounting firm opining on or certifying such financial statements stating that in X.X. Xxxx'x report dated March 15the course of its regular audit of the financial statements of Borrower and its Subsidiaries, 2004which audit was conducted in accordance with generally accepted auditing standards, entitled "Independent Engineer's Reportsuch accounting firm obtained no knowledge that any Default with respect to the Financial Covenant has occurred during such fiscal year or, Calpine Generating Companyif in the opinion of such accounting firm such a Default has occurred, LLC Facilities" specifying the nature and extent thereof; provided that, if such Compliance Certificate demonstrates that an Event of Default due to failure to comply with the Financial Covenant under Section 6.10 has not been cured prior to such time, Borrower may deliver, to the extent and within the time period permitted by Section 8.03, prior to or together with such Compliance Certificate, notice of its intent to cure (the "Xxxx Report"), are not reasonable; (iiia “Notice of Intent to Cure”) the information provided by the CalGen Companies to X.such Event of Default;
Appears in 1 contract
Financial Officer’s Certificate. The chief (i) Concurrently with any delivery of financial officer statements under Section 5.01(a) or (b), a Compliance Certificate of the Borrower Designated Company (which delivery may, unless the Administrative Agent or a Lender requests executed originals, be by electronic communication including fax or email and shall have furnished be deemed to be an original authentic counterpart thereof for all purposes) (A) certifying that no Default has occurred or, if such a certificateDefault has occurred, dated specifying the Closing Datenature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, in form and substance satisfactory (B) [intentionally omitted], (C) showing a reconciliation of Consolidated EBITDA to the Administrative Agentnet income set forth on the statement of income, stating such reconciliation to be on a quarterly basis, (D) calculating in reasonable detail the Consolidated Interest Coverage Ratio and the Senior Secured Net Leverage Ratio for the four fiscal quarter period ended on the last day of the period covered by such financial statements, and certifying as to the effect that:
Designated Company’s compliance (aor failure to comply) The present fair saleable value with the Financial Performance Covenant for the four fiscal quarter period ended on the last day of the assets of each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) exceeds the amount required to pay the probable liability on its existing debts, respectively (whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent), as they become absolute and matured, and as a result of the consummation of the transactions contemplated herein and in the Bank Book, will continue to exceed period covered by such amount;
(b) Each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) does notfinancial statements, and, as a result if such Compliance Certificate demonstrates an Event of Default of the consummation Financial Performance Covenant, any of the transactions contemplated Specified Holders may deliver, together with such Compliance Certificate, notice of their intent to cure (a “Notice of Intent to Cure”) such Event of Default pursuant to, and to the extent permitted under, Section 8.04; provided that the delivery of a Notice of Intent to Cure shall in this Agreementno way affect or alter the 1104695.02A-CHISR01A - MSW occurrence, existence or continuation of any such Event of Default or the rights, benefits, powers and remedies of the Administrative Agent and the Lenders under any Loan Document, and (E)(x) specifying all Investments made during the prior fiscal quarter in reliance on Section 6.04(r) and specifying which clause of Section 6.04(r) such Investment was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the amount thereof elected to be so applied, the other Financing Documents Total Net Leverage Ratio and, in the case of Investments made pursuant to Section 6.04(r)(iii), the amount of Liquidity, and (y) specifying all Dividends made during the prior fiscal quarter in reliance on Section 6.08(d) and specifying which clause of Section 6.08(d) such Dividend was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the Bank Book, will not, have unreasonably small capital for it to carry on its business as proposed amount thereof elected to be conducted;
(c) Neither so applied, the Borrower nor any Subsidiary of the Borrower (other than CalGen Finance) is incurring obligations or making transfers under any evidence of indebtedness with the intent to hinderTotal Net Leverage Ratio and, delay or defraud any entity to which it is or will become indebted; and
(d) Nothing has come to the Borrower's attention to cause it to believe that: (i) X.X. Xxxx is not qualified to pass on questions relating to the technical, environmental and economic aspects of the projects operated by the CalGen Companies as such projects are described in the Bank Book; case of Dividends made pursuant to Section 6.08(d)(ii), the amount of Liquidity, and (ii) to the assumptions included extent any Unrestricted Subsidiaries are in X.X. Xxxx'x report dated March 15existence during the period covered by such financial statements, 2004consolidating balance sheets, entitled "Independent Engineer's Reportstatements of income and cash flows separating out the results of the Designated Company and its Restricted Subsidiaries, Calpine Generating Companyon the one hand, LLC Facilities" (and the "Xxxx Report")Unrestricted Subsidiaries, are not reasonable; (iii) on the information provided by the CalGen Companies to X.other;
Appears in 1 contract
Financial Officer’s Certificate. The chief (i) Concurrently with any delivery of financial officer statements under Section 5.01(a) or (b), a Compliance Certificate (which delivery may, unless the Administrative Agent or a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes) (A) certifying that no Default has occurred or, if such a Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (B) concurrently with any delivery of financial statements under Section 5.01(a) above (commencing with the financial statements for the first complete fiscal year of the Borrower shall have furnished a certificate, dated beginning after the Closing Date), setting forth the Borrower’s calculation of Excess Cash Flow, (C) showing a reconciliation of Consolidated EBITDA to the net income set forth on the statement of income, such reconciliation to be on a quarterly basis, (D) calculating in reasonable detail the Consolidated Interest Coverage Ratio and the Senior Secured Net Leverage Ratio, and (E)(x) specifying all Investments made during the prior fiscal quarter in reliance on Section 6.04(r) and specifying which clause of Section 6.04(r) such Investment was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the amount thereof elected to be so applied, the Total Net Leverage Ratio and, in form the case of Investments made pursuant to Section 6.04(r)(iii), the amount of Liquidity, (y) specifying all Dividends made during the prior fiscal quarter in reliance on Section 6.08(d) and substance satisfactory specifying which clause of Section 6.08(d) such Dividend was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the amount thereof elected to be so applied, the Total Net Leverage Ratio and, in the case of Dividends made pursuant to Section 6.08(d)(ii), the amount of Liquidity, and (z) specifying all Permitted Prepayments made during the prior fiscal quarter in reliance on Section 6.11(a) and specifying which clause of Section 6.11(a) such Permitted Prepayment was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the amount thereof elected to be so applied, the Total Net Leverage Ratio and, in the case of a Permitted Prepayment made pursuant to Section 6.11(a)(i)(z)(2), the amount of Liquidity, and (ii) to the Administrative Agentextent any Unrestricted Subsidiaries are in existence during the period covered by such financial statements, stating to consolidating balance sheets, statements of income and cash flows separating out the effect that:
(a) The present fair saleable value of the assets of each results of the Borrower and each Subsidiary of its Restricted Subsidiaries, on the Borrower (other than CalGen Finance) exceeds the amount required to pay the probable liability on its existing debts, respectively (whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent), as they become absolute and maturedone hand, and as a result of the consummation of Unrestricted Subsidiaries, on the transactions contemplated herein and in the Bank Book, will continue to exceed such amountother;
(b) Each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) does not, and, as a result of the consummation of the transactions contemplated in this Agreement, the other Financing Documents and the Bank Book, will not, have unreasonably small capital for it to carry on its business as proposed to be conducted;
(c) Neither the Borrower nor any Subsidiary of the Borrower (other than CalGen Finance) is incurring obligations or making transfers under any evidence of indebtedness with the intent to hinder, delay or defraud any entity to which it is or will become indebted; and
(d) Nothing has come to the Borrower's attention to cause it to believe that: (i) X.X. Xxxx is not qualified to pass on questions relating to the technical, environmental and economic aspects of the projects operated by the CalGen Companies as such projects are described in the Bank Book; (ii) the assumptions included in X.X. Xxxx'x report dated March 15, 2004, entitled "Independent Engineer's Report, Calpine Generating Company, LLC Facilities" (the "Xxxx Report"), are not reasonable; (iii) the information provided by the CalGen Companies to X.
Appears in 1 contract
Financial Officer’s Certificate. The chief (i) Concurrently with any delivery of financial officer statements under Section 5.01(a) or (b), a Compliance Certificate of the Borrower Designated Company (which delivery may, unless the Administrative Agent or a Lender requests executed originals, be by electronic communication including fax or email and shall have furnished be deemed to be an original authentic counterpart thereof for all purposes) (A) certifying that no Default has occurred or, if such a certificateDefault has occurred, dated specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (B) concurrently with any delivery of financial statements under Section 5.01(a) above (commencing with the financial statements for the first complete fiscal year of the Designated Company beginning after the Closing Date), in form and substance satisfactory setting forth the Designated Company’s calculation of Excess Cash Flow, (C) showing a reconciliation of Consolidated EBITDA to the Administrative Agentnet income set forth on the statement of income, stating such reconciliation to be on a quarterly basis, (D) calculating in reasonable detail the Consolidated Interest Coverage Ratio and the Senior Secured Net Leverage Ratio for the four fiscal quarter period ended on the last day of the period covered by such financial statements, and certifying as to the effect that:
Designated Company’s compliance (aor failure to comply) The present fair saleable value with the Financial Performance Covenant for the four fiscal quarter period ended on the last day of the assets of each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) exceeds the amount required to pay the probable liability on its existing debts, respectively (whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent), as they become absolute and matured, and as a result of the consummation of the transactions contemplated herein and in the Bank Book, will continue to exceed period covered by such amount;
(b) Each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) does notfinancial statements, and, as a result if such Compliance Certificate demonstrates an Event of Default of the consummation Financial Performance Covenant, any of the transactions contemplated Specified Holders may deliver, together with such Compliance Certificate, notice of their intent to cure (a “Notice of Intent to Cure”) such Event of Default pursuant to, and to the extent permitted under, Section 8.04; provided that the delivery of a Notice of Intent to Cure shall in this Agreementno way affect or alter the occurrence, existence or 1117312.02-CHISR02A - MSW continuation of any such Event of Default or the rights, benefits, powers and remedies of the Administrative Agent and the Lenders under any Loan Document, and (E)(x) specifying all Investments made during the prior fiscal quarter in reliance on Section 6.04(r) and specifying which clause of Section 6.04(r) such Investment was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the amount thereof elected to be so applied, the other Financing Documents Total Net Leverage Ratio and, in the case of Investments made pursuant to Section 6.04(r)(iii), the amount of Liquidity, (y) specifying all Dividends made during the prior fiscal quarter in reliance on Section 6.08(d) and specifying which clause of Section 6.08(d) such Dividend was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the Bank Book, will not, have unreasonably small capital for it to carry on its business as proposed amount thereof elected to be conducted;
so applied, the Total Net Leverage Ratio and, in the case of Dividends made pursuant to Section 6.08(d)(ii), the amount of Liquidity, and (cz) Neither specifying all Permitted Prepayments made during the Borrower nor any Subsidiary prior fiscal quarter in reliance on Section 6.11(a) and specifying which clause of Section 6.11(a) such Permitted Prepayment was made pursuant to and calculating in reasonable detail the amount of the Borrower (other than CalGen Finance) is incurring obligations Cumulative Credit or making transfers under any evidence of indebtedness with Annual Credit, as applicable, immediately prior to such election and the intent amount thereof elected to hinderbe so applied, delay or defraud any entity to which it is or will become indebted; the Total Net Leverage Ratio and
(d) Nothing has come to the Borrower's attention to cause it to believe that: (i) X.X. Xxxx is not qualified to pass on questions relating to the technical, environmental and economic aspects of the projects operated by the CalGen Companies as such projects are described in the Bank Book; case of a Permitted Prepayment made pursuant to Section 6.11(a)(i)(z)(2), the amount of Liquidity, and (ii) to the assumptions included extent any Unrestricted Subsidiaries are in X.X. Xxxx'x report dated March 15existence during the period covered by such financial statements, 2004consolidating balance sheets, entitled "Independent Engineer's Reportstatements of income and cash flows separating out the results of the Designated Company and its Restricted Subsidiaries, Calpine Generating Companyon the one hand, LLC Facilities" (and the "Xxxx Report")Unrestricted Subsidiaries, are not reasonable; (iii) on the information provided by the CalGen Companies to X.other;
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
Financial Officer’s Certificate. The chief (i) Concurrently with any delivery of financial officer statements under Section 5.01(a) or (b), a Compliance Certificate of the Borrower Designated Company (which delivery may, unless the Administrative Agent or a Lender requests executed originals, be by electronic communication including fax or email and shall have furnished be deemed to be an original authentic counterpart thereof for all purposes) (A) certifying that no Default has occurred or, if 1160381.015-CHISR02A - MSW such a certificateDefault has occurred, dated specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (B) concurrently with any delivery of financial statements under Section 5.01(a) above (commencing with the financial statements for the first complete fiscal year of the Designated Company beginning after the Closing Date), in form and substance satisfactory setting forth the Designated Company’s calculation of Excess Cash Flow, (C) showing a reconciliation of Consolidated EBITDA to the Administrative Agentnet income set forth on the statement of income, stating such reconciliation to be on a quarterly basis, (D) calculating in reasonable detail the Consolidated Interest Coverage Ratio and the Senior Secured Net Leverage Ratio for the four fiscal quarter period ended on the last day of the period covered by such financial statements, and certifying as to the effect that:
Designated Company’s compliance (aor failure to comply) The present fair saleable value with the Financial Performance Covenant for the four fiscal quarter period ended on the last day of the assets of each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) exceeds the amount required to pay the probable liability on its existing debts, respectively (whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent), as they become absolute and matured, and as a result of the consummation of the transactions contemplated herein and in the Bank Book, will continue to exceed period covered by such amount;
(b) Each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) does notfinancial statements, and, as a result if such Compliance Certificate demonstrates an Event of Default of the consummation Financial Performance Covenant, any of the transactions contemplated Specified Holders may deliver, together with such Compliance Certificate, notice of their intent to cure (a “Notice of Intent to Cure”) such Event of Default pursuant to, and to the extent permitted under, Section 8.04; provided that the delivery of a Notice of Intent to Cure shall in this Agreementno way affect or alter the occurrence, existence or continuation of any such Event of Default or the rights, benefits, powers and remedies of the Administrative Agent and the Lenders under any Loan Document, and (E)(x) specifying all Investments made during the prior fiscal quarter in reliance on Section 6.04(r) and specifying which clause of Section 6.04(r) such Investment was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the amount thereof elected to be so applied, the other Financing Documents Total Net Leverage Ratio and, in the case of Investments made pursuant to Section 6.04(r)(iii), the amount of Liquidity, (y) specifying all Dividends made during the prior fiscal quarter in reliance on Section 6.08(d) and specifying which clause of Section 6.08(d) such Dividend was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the Bank Book, will not, have unreasonably small capital for it to carry on its business as proposed amount thereof elected to be conducted;
so applied, the Total Net Leverage Ratio and, in the case of Dividends made pursuant to Section 6.08(d)(ii), the amount of Liquidity, and (cz) Neither specifying all Permitted Prepayments made during the Borrower nor any Subsidiary prior fiscal quarter in reliance on Section 6.11(a) and specifying which clause of Section 6.11(a) such Permitted Prepayment was made pursuant to and calculating in reasonable detail the amount of the Borrower (other than CalGen Finance) is incurring obligations Cumulative Credit or making transfers under any evidence of indebtedness with Annual Credit, as applicable, immediately prior to such election and the intent amount thereof elected to hinderbe so applied, delay or defraud any entity to which it is or will become indebted; the Total Net Leverage Ratio and
(d) Nothing has come to the Borrower's attention to cause it to believe that: (i) X.X. Xxxx is not qualified to pass on questions relating to the technical, environmental and economic aspects of the projects operated by the CalGen Companies as such projects are described in the Bank Book; case of a Permitted Prepayment made pursuant to Section 6.11(a)(i)(z)(2), the amount of Liquidity, and (ii) to the assumptions included extent any Unrestricted Subsidiaries are in X.X. Xxxx'x report dated March 15existence during the period covered by such financial statements, 2004consolidating balance sheets, entitled "Independent Engineer's Reportstatements of income and cash flows separating out the results of the Designated Company and its Restricted Subsidiaries, Calpine Generating Companyon the one hand, LLC Facilities" (and the "Xxxx Report")Unrestricted Subsidiaries, are not reasonable; (iii) on the information provided by the CalGen Companies to X.other;
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
Financial Officer’s Certificate. The chief (i) Concurrently with any delivery of financial officer statements under Section 5.01(a) or (b), a Compliance Certificate of the Borrower Designated Company (which delivery may, unless the Administrative Agent or a Lender requests executed originals, be by electronic communication including fax or email and shall have furnished be deemed to be an original authentic counterpart thereof for all purposes) (A) certifying that no Default has occurred or, if such a certificateDefault has occurred, dated specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (B) concurrently with any delivery of financial statements under Section 5.01(a) above (commencing with the financial statements for the first complete fiscal year of the Designated Company beginning after the Closing Date), in form and substance satisfactory setting forth the Designated Company’s calculation of Excess Cash Flow, (C) showing a reconciliation of Consolidated EBITDA to the Administrative Agentnet income set forth on the statement of income, stating such reconciliation to be on a quarterly basis, (D) calculating in reasonable detail the Consolidated Interest Coverage Ratio and the Senior Secured Net Leverage Ratio for the four fiscal quarter period ended on the last day of the period covered by such financial statements, and certifying as to the effect that:
Designated Company’s compliance (aor failure to comply) The present fair saleable value with the Financial Performance Covenant for the four fiscal quarter period ended on the last day of the assets of each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) exceeds the amount required to pay the probable liability on its existing debts, respectively (whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent), as they become absolute and matured, and as a result of the consummation of the transactions contemplated herein and in the Bank Book, will continue to exceed period covered by such amount;
(b) Each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) does notfinancial statements, and, as a result if such Compliance Certificate demonstrates an Event of Default of the consummation Financial Performance Covenant, any of the transactions contemplated Specified Holders may deliver, together with such Compliance Certificate, notice of their intent to cure (a “Notice of Intent to Cure”) such Event of Default pursuant to, and to the extent permitted under, Section 8.04; provided that the delivery of a Notice of Intent to Cure shall in this Agreementno way affect or alter the occurrence, existence or continuation of any such Event of Default or the rights, benefits, powers and remedies of the Administrative Agent and the Lenders under any Loan Document, and (E)(x) specifying all Investments made during the prior fiscal quarter in reliance on Section 6.04(r) and 1087312.03B-CHISR01A1209777.02-CHISR02A - MSW specifying which clause of Section 6.04(r) such Investment was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the amount thereof elected to be so applied, the other Financing Documents Total Net Leverage Ratio and, in the case of Investments made pursuant to Section 6.04(r)(iii), the amount of Liquidity, (y) specifying all Dividends made during the prior fiscal quarter in reliance on Section 6.08(d) and specifying which clause of Section 6.08(d) such Dividend was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the Bank Book, will not, have unreasonably small capital for it to carry on its business as proposed amount thereof elected to be conducted;
so applied, the Total Net Leverage Ratio and, in the case of Dividends made pursuant to Section 6.08(d)(ii), the amount of Liquidity, and (cz) Neither specifying all Permitted Prepayments made during the Borrower nor any Subsidiary prior fiscal quarter in reliance on Section 6.11(a) and specifying which clause of Section 6.11(a) such Permitted Prepayment was made pursuant to and calculating in reasonable detail the amount of the Borrower (other than CalGen Finance) is incurring obligations Cumulative Credit or making transfers under any evidence of indebtedness with Annual Credit, as applicable, immediately prior to such election and the intent amount thereof elected to hinderbe so applied, delay or defraud any entity to which it is or will become indebted; the Total Net Leverage Ratio and
(d) Nothing has come to the Borrower's attention to cause it to believe that: (i) X.X. Xxxx is not qualified to pass on questions relating to the technical, environmental and economic aspects of the projects operated by the CalGen Companies as such projects are described in the Bank Book; case of a Permitted Prepayment made pursuant to Section 6.11(a)(i)(z)(2), the amount of Liquidity, and (ii) to the assumptions included extent any Unrestricted Subsidiaries are in X.X. Xxxx'x report dated March 15existence during the period covered by such financial statements, 2004consolidating balance sheets, entitled "Independent Engineer's Reportstatements of income and cash flows separating out the results of the Designated Company and its Restricted Subsidiaries, Calpine Generating Companyon the one hand, LLC Facilities" (and the "Xxxx Report")Unrestricted Subsidiaries, are not reasonable; (iii) on the information provided by the CalGen Companies to X.other;
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)
Financial Officer’s Certificate. The chief financial officer of the Borrower shall have furnished a certificate, dated the Closing Date, in form and substance satisfactory to the Administrative Agent, stating to the effect that:
(a) The present fair saleable value of the assets of each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) exceeds the amount required to pay the probable liability on its existing debts, respectively (whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent), as they become absolute and matured, and as a result of the consummation of the transactions contemplated herein and in the Bank Book, will continue to exceed such amount;
(b) Each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) does not, and, as a result of the consummation of the transactions contemplated in this Agreement, the other Financing Documents and the Bank Book, will not, have unreasonably small capital for it to carry on its business as proposed to be conducted;
(c) Neither the Borrower nor any Subsidiary of the Borrower (other than CalGen Finance) is incurring obligations or making transfers under any evidence of indebtedness with the intent to hinder, delay or defraud any entity to which it is or will become indebted; and
(d) Nothing has come to the Borrower's attention to cause it to believe that: (i) X.X. Xxxx is not qualified to pass on questions relating to the technical, environmental and economic aspects of the projects operated by the CalGen Companies as such projects are described in the Bank Book; (ii) the assumptions included in X.X. R.W. 70 Xxxx'x report dated March 15, 2004, entitled "Independent Engineer's Report, Calpine Generating Company, LLC Facilities" (the "Xxxx Report"), are not reasonable; (iii) the information provided by the CalGen Companies to X.X.X. Xxxx in connection with the Xxxx Report was not prepared in good faith by the CalGen Companies; and (iv) the factual information or the conclusions contained in the Xxxx Report are inaccurate in any material adverse respect.
Appears in 1 contract
Samples: Credit Agreement (Calpine Corp)
Financial Officer’s Certificate. The chief (i) Concurrently with any delivery of financial officer statements under Section 5.01(a) or (b), a Compliance Certificate of the Borrower Designated Company (which delivery may, unless the Administrative Agent or a Lender requests executed originals, be by electronic communication including fax or email and shall have furnished be deemed to be an original authentic counterpart thereof for all purposes) (A) certifying that no Default has occurred or, if such a certificateDefault has occurred, dated specifying the Closing Datenature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, in form and substance satisfactory (B) [intentionally omitted], (C) showing a reconciliation of Consolidated EBITDA to the Administrative Agentnet income set forth on the statement of income, stating such reconciliation to be on a quarterly basis, (D) calculating in reasonable detail the Consolidated Interest Coverage Ratio and the Senior Secured Net Leverage Ratio for the four fiscal quarter period ended on the last day of the period covered by such financial statements, and certifying as to the effect that:
Designated Company’s compliance (aor failure to comply) The present fair saleable value with the Financial Performance Covenant for the four fiscal quarter period ended on the last day of the assets of each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) exceeds the amount required to pay the probable liability on its existing debts, respectively (whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent), as they become absolute and matured, and as a result of the consummation of the transactions contemplated herein and in the Bank Book, will continue to exceed period covered by such amount;
(b) Each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) does notfinancial statements, and, as a result if such Compliance Certificate demonstrates an Event of Default of the consummation Financial Performance Covenant, any of the transactions contemplated Specified Holders may deliver, together with such Compliance Certificate, notice of their intent to cure (a “Notice of Intent to Cure”) such Event of Default pursuant to, and to the extent permitted under, Section 8.04; provided that the delivery of a Notice of Intent to Cure shall in this Agreementno way affect or alter the occurrence, existence or continuation of any such Event of Default or the rights, benefits, powers and remedies of the Administrative Agent and the Lenders under any Loan Document, and (E)(x) specifying all Investments made during the prior fiscal quarter in reliance on Section 6.04(r) and specifying which clause of Section 6.04(r) such Investment was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the amount thereof elected to be so applied, the other Financing Documents Total Net Leverage Ratio and, in the case of Investments made pursuant to Section 6.04(r)(iii), the amount of Liquidity, and (y) specifying all Dividends made during the prior fiscal quarter in reliance on Section 6.08(d) and specifying which clause of Section 6.08(d) such Dividend was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the Bank Book, will not, have unreasonably small capital for it to carry on its business as proposed amount thereof elected to be conducted;
(c) Neither so applied, the Borrower nor any Subsidiary of the Borrower (other than CalGen Finance) is incurring obligations or making transfers under any evidence of indebtedness with the intent to hinderTotal Net Leverage Ratio and, delay or defraud any entity to which it is or will become indebted; and
(d) Nothing has come to the Borrower's attention to cause it to believe that: (i) X.X. Xxxx is not qualified to pass on questions relating to the technical, environmental and economic aspects of the projects operated by the CalGen Companies as such projects are described in the Bank Book; case of Dividends made pursuant to Section 6.08(d)(ii), the amount of Liquidity, and (ii) to the assumptions included extent any Unrestricted Subsidiaries are in X.X. Xxxx'x report dated March 15existence during the period covered by such financial statements, 2004consolidating balance sheets, entitled "Independent Engineer's Reportstatements of income and cash flows separating out the results of the Designated Company and its Restricted Subsidiaries, Calpine Generating Companyon the one hand, LLC Facilities" (and the "Xxxx Report")Unrestricted Subsidiaries, are not reasonable; (iii) on the information provided by the CalGen Companies to X.other;
Appears in 1 contract
Financial Officer’s Certificate. The chief (i) Concurrently with any delivery of financial officer statements under Section 5.01(a) or (b), a Compliance Certificate of the Borrower Designated Company (which delivery may, unless the Administrative Agent or a Lender requests executed originals, be by electronic communication including fax or email and shall have furnished be deemed to be an original authentic counterpart thereof for all purposes) (A) certifying that no Default has occurred or, if such a certificateDefault has occurred, dated specifying the Closing Datenature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, in form and substance satisfactory (B) [intentionally omitted], (C) showing a reconciliation of Consolidated EBITDA to the Administrative Agentnet income set forth on the statement of income, stating such reconciliation to be on a quarterly basis, (D) calculating in reasonable detail the Consolidated Interest Coverage Ratio and the Senior Secured Net Leverage Ratio for the four fiscal quarter period ended on the last day of the period covered by such financial statements, and certifying as to the effect that:
Designated Company’s compliance (aor failure to comply) The present fair saleable value with the Financial Performance Covenant for the four fiscal quarter period ended on the last day of the assets of each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) exceeds the amount required to pay the probable liability on its existing debts, respectively (whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent), as they become absolute and matured, and as a result of the consummation of the transactions contemplated herein and in the Bank Book, will continue to exceed period covered by such amount;
(b) Each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) does notfinancial statements, and, as a result if such Compliance Certificate demonstrates an Event of Default of the consummation Financial Performance Covenant, any of the transactions contemplated Specified Holders may deliver, together with such Compliance Certificate, notice of their intent to cure (a “Notice of Intent to Cure”) such Event of Default pursuant to, and to the extent permitted under, Section 8.04; provided that the delivery of a Notice of Intent to Cure shall in this Agreementno way affect or alter the occurrence, existence or continuation of any such Event of Default or the rights, benefits, powers and remedies of the Administrative Agent and the Lenders under any Loan Document, and (E)(x) specifying all Investments made during the prior fiscal quarter in reliance on Section 6.04(r) and specifying which clause of Section 6.04(r) such Investment was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the amount thereof elected to be so applied, the other Financing Documents Total Net Leverage Ratio and, in the case of Investments made pursuant to Section 6.04(r)(iii), the amount of Liquidity, and (y) specifying all Dividends made during the prior fiscal quarter in reliance on Section 6.08(d) and specifying which clause of Section 6.08(d) such Dividend was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the Bank Book, will not, have unreasonably small capital for it to carry on its business as proposed amount thereof elected to be conducted;
(c) Neither so applied, the Borrower nor any Subsidiary of the Borrower (other than CalGen Finance) is incurring obligations or making transfers under any evidence of indebtedness with the intent to hinderTotal Net Leverage Ratio and, delay or defraud any entity to which it is or will become indebted; and
(d) Nothing has come to the Borrower's attention to cause it to believe that: (i) X.X. Xxxx is not qualified to pass on questions relating to the technical, environmental and economic aspects of the projects operated by the CalGen Companies as such projects are described in the Bank Book; case of Dividends made pursuant to 1066931.03C-XXXXX000000000.04-CHISR02A - MSW Section 6.08(d)(ii), the amount of Liquidity, and (ii) to the assumptions included extent any Unrestricted Subsidiaries are in X.X. Xxxx'x report dated March 15existence during the period covered by such financial statements, 2004consolidating balance sheets, entitled "Independent Engineer's Reportstatements of income and cash flows separating out the results of the Designated Company and its Restricted Subsidiaries, Calpine Generating Companyon the one hand, LLC Facilities" (and the "Xxxx Report")Unrestricted Subsidiaries, are not reasonable; (iii) on the information provided by the CalGen Companies to X.other;
Appears in 1 contract
Financial Officer’s Certificate. The chief (i) Concurrently with any delivery of financial officer statements under Section 5.01(a) or (b), a Compliance Certificate of the Borrower Designated Company (which delivery may, unless the Administrative Agent or a Lender requests executed originals, be by electronic communication including fax or email and shall have furnished be deemed to be an original authentic counterpart thereof for all purposes) (A) certifying that no Default has occurred or, if such a certificateDefault has occurred, dated specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (B) concurrently with any delivery of financial statements under Section 5.01(a) above (commencing with the financial statements for the first complete fiscal year of the Designated Company beginning after the Closing Date), in form and substance satisfactory setting forth the Designated Company’s calculation of Excess Cash Flow, (C) showing a reconciliation of Consolidated EBITDA to the Administrative Agentnet income set forth on the statement of income, stating such reconciliation to be on a quarterly basis, (D) calculating in reasonable detail the Consolidated Interest Coverage Ratio and the Senior Secured Net Leverage Ratio for the four fiscal quarter period ended on the last day of the period covered by such financial statements, and certifying as to the effect that:
Designated Company’s compliance (aor failure to comply) The present fair saleable value with the Financial Performance Covenant for the four fiscal quarter period ended on the last day of the assets of each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) exceeds the amount required to pay the probable liability on its existing debts, respectively (whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent), as they become absolute and matured, and as a result of the consummation of the transactions contemplated herein and in the Bank Book, will continue to exceed period covered by such amount;
(b) Each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) does notfinancial statements, and, as a result if such Compliance Certificate demonstrates an Event of Default of the consummation Financial Performance Covenant, any of the transactions contemplated Specified Holders may deliver, together with such Compliance Certificate, notice of their intent to cure (a “Notice of Intent to Cure”) such Event of Default pursuant to, and to the extent permitted under, Section 8.04; provided that the delivery of a Notice of Intent to Cure shall in this Agreementno way affect or alter the occurrence, existence or continuation of any such Event of Default or the rights, benefits, powers and remedies of the Administrative Agent and the Lenders under any Loan 1234400.03-CHISR02A - MSW Document, and (E)(x) specifying all Investments made during the prior fiscal quarter in reliance on Section 6.04(r) and specifying which clause of Section 6.04(r) such Investment was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the amount thereof elected to be so applied, the other Financing Documents Total Net Leverage Ratio and, in the case of Investments made pursuant to Section 6.04(r)(iii), the amount of Liquidity, (y) specifying all Dividends made during the prior fiscal quarter in reliance on Section 6.08(d) and specifying which clause of Section 6.08(d) such Dividend was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the Bank Book, will not, have unreasonably small capital for it to carry on its business as proposed amount thereof elected to be conducted;
so applied, the Total Net Leverage Ratio and, in the case of Dividends made pursuant to Section 6.08(d)(ii), the amount of Liquidity, and (cz) Neither specifying all Permitted Prepayments made during the Borrower nor any Subsidiary prior fiscal quarter in reliance on Section 6.11(a) and specifying which clause of Section 6.11(a) such Permitted Prepayment was made pursuant to and calculating in reasonable detail the amount of the Borrower (other than CalGen Finance) is incurring obligations Cumulative Credit or making transfers under any evidence of indebtedness with Annual Credit, as applicable, immediately prior to such election and the intent amount thereof elected to hinderbe so applied, delay or defraud any entity to which it is or will become indebted; the Total Net Leverage Ratio and
(d) Nothing has come to the Borrower's attention to cause it to believe that: (i) X.X. Xxxx is not qualified to pass on questions relating to the technical, environmental and economic aspects of the projects operated by the CalGen Companies as such projects are described in the Bank Book; case of a Permitted Prepayment made pursuant to Section 6.11(a)(i)(z)(2), the amount of Liquidity, and (ii) to the assumptions included extent any Unrestricted Subsidiaries are in X.X. Xxxx'x report dated March 15existence during the period covered by such financial statements, 2004consolidating balance sheets, entitled "Independent Engineer's Reportstatements of income and cash flows separating out the results of the Designated Company and its Restricted Subsidiaries, Calpine Generating Companyon the one hand, LLC Facilities" (and the "Xxxx Report")Unrestricted Subsidiaries, are not reasonable; (iii) on the information provided by the CalGen Companies to X.other;
Appears in 1 contract
Samples: Refinancing Amendment to Credit Agreement (Novelis Inc.)
Financial Officer’s Certificate. The chief financial officer (1) Concurrently with the delivery of the Borrower shall have furnished a certificatefinancial statements referred to in Section 5.01(a), dated the Closing Date, in form and substance satisfactory to the Administrative Agentextent such financial statements cover a period when Section 6.09 is applicable, stating to the effect that:
(a) The present fair saleable value extent available on commercially reasonable terms and in accordance with the standards of the assets of each Public Company Accounting Oversight Board (United States), a written statement of the Borrower and each Subsidiary independent certified public accountants reporting on such financial statements stating (A) whether in connection with their audit examination, such independent certified public accountants obtained knowledge of the Borrower (other than CalGen Finance) exceeds the amount required to pay the probable liability on its existing debts, respectively (whether matured any condition or unmatured, liquidated or unliquidated, absolute, fixed or contingent), as they become absolute and matured, and event that constitutes an Event of Default as a result of failure to comply with Section 6.09 (to the consummation extent applicable) and (B) if such independent certified public accountants obtained knowledge of the transactions contemplated herein and in the Bank Book, will continue to exceed such amount;
(b) Each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) does not, and, as a result of the consummation of the transactions contemplated in this Agreementcondition, the other Financing Documents and the Bank Book, will not, have unreasonably small capital for it nature thereof; provided that such accountants shall not be liable by reason of any failure to carry on its business as proposed to be conducted;
(c) Neither the Borrower nor any Subsidiary obtain knowledge of the Borrower (other than CalGen Finance) is incurring obligations or making transfers under any evidence such an Event of indebtedness with the intent to hinder, delay or defraud any entity to which it is or will become indebtedDefault; and
(d2) Nothing has come Concurrently with the delivery of any financial statements pursuant to the Borrower's attention to cause it to believe that: Section 5.01(a) or (b), (i) X.X. Xxxx is not qualified to pass on questions relating to the technical, environmental and economic aspects a certificate of a Financial Officer of the projects operated by Loan Parties stating that such Financial Officer has obtained no knowledge of the CalGen Companies existence of any Default or Event of Default that is continuing except as specified in such projects are described in the Bank Book; certificate, (ii) to the assumptions included in X.X. Xxxx'x report dated March 15extent such financial statements cover a period when Section 6.09 is applicable, 2004a Compliance Certificate showing calculations for determining compliance by the Loan Parties with Section 6.09 as of the last day of the applicable fiscal quarter or fiscal year, entitled "Independent Engineer's Reportas the case may be covered by such financial statements and, Calpine Generating Companyif such Compliance Certificate demonstrates an Event of Default of any Financial Performance Covenant, LLC Facilities" a notice of intent to cure (the "Xxxx Report"), are not reasonable; a “Notice of Intent to Cure”) such Event of Default pursuant to Section 8.04 may be delivered with such Compliance Certificate and (iii) a list identifying each Unrestricted Subsidiary (if any) (and, in the information provided by event there are any Unrestricted Subsidiaries, a reconciliation or narrative explanation of such financial statements depicting or explaining the CalGen Companies to X.results of the Borrower, the Borrower and the Restricted Subsidiaries, on the one hand and the Unrestricted Subsidiaries on the other hand);
Appears in 1 contract
Samples: Credit Agreement (Stockbridge/Sbe Investment Company, LLC)
Financial Officer’s Certificate. The chief Furnish to each Noteholder, (i) (A) concurrently with any delivery of financial officer statements under Section 6.01(a), (b) or (c), a Compliance Certificate (it being understood that such Compliance Certificate shall only be required on a monthly basis for so long as Holdings is required to comply with the provisions of Section 7.10(b)) (x) certifying that during the Borrower shall have furnished period covered thereby no Default has occurred or, if such a certificateDefault has occurred, dated specifying the Closing Datenature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (y) beginning with the fiscal quarter ending June 30, 2006, setting forth computations in form and substance reasonable detail satisfactory to the Administrative Agent, stating Required Holders demonstrating compliance with the covenants contained in Sections 7.07(f) and 7.10 and (z) showing a reconciliation of Consolidated EBITDA to the effect that:
net income set forth on the statement of income; and (aB) The present fair saleable value no later than 3 Business Days after each fiscal month in which Holdings is required to comply with the covenant set forth in Section 7.10(b) a certificate of a Financial Officer certifying as to the cash and Cash Equivalents balances of Holdings and its Subsidiaries as of the assets last day of such fiscal month, based solely on account information available online, and no later than 15 calendar days after each fiscal month in which Holdings is required to comply with the covenant set forth in Section 7.10(b) a certificate of a Financial Officer certifying as to the amount of Qualified Cash as of the Borrower last day of such fiscal month and each Subsidiary of whether or not the Borrower (other than CalGen Finance) exceeds the amount required to pay the probable liability on its existing debts, respectively (whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent), as they become absolute Minimum Qualified Cash Requirement for such fiscal month has been satisfied; and matured, and as a result of the consummation of the transactions contemplated herein and in the Bank Book, will continue to exceed such amount;
(b) Each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) does not, and, as a result of the consummation of the transactions contemplated in this Agreement, the other Financing Documents and the Bank Book, will not, have unreasonably small capital for it to carry on its business as proposed to be conducted;
(c) Neither the Borrower nor any Subsidiary of the Borrower (other than CalGen Finance) is incurring obligations or making transfers under any evidence of indebtedness with the intent to hinder, delay or defraud any entity to which it is or will become indebted; and
(d) Nothing has come to the Borrower's attention to cause it to believe that: (i) X.X. Xxxx is not qualified to pass on questions relating to the technical, environmental and economic aspects of the projects operated by the CalGen Companies as such projects are described in the Bank Book; (ii) unless prohibited by professional standards applicable to such accounting firm, concurrently with any delivery of financial statements under Section 6.01(a) above, beginning with the assumptions included fiscal year ending December 31, 2006, a report of the accounting firm opining on or certifying such financial statements stating that in X.X. Xxxx'x report dated March 15the course of its regular audit of the financial statements of Holdings and its Subsidiaries, 2004which audit was conducted in accordance with generally accepted auditing standards, entitled "Independent Engineer's Reportsuch accounting firm obtained no knowledge that any Default insofar as it relates to financial or accounting matters has occurred or, Calpine Generating Companyif in the opinion of such accounting firm such a Default has occurred, LLC Facilities" (specifying the "Xxxx Report"), are not reasonable; (iii) the information provided by the CalGen Companies to X.nature and extent thereof;
Appears in 1 contract
Samples: Purchase Agreement (Digital Domain)
Financial Officer’s Certificate. The chief financial officer (1) Concurrently with the delivery of the Borrower shall have furnished a certificatefinancial statements referred to in Section 5.01(a), dated the Closing Date, in form and substance satisfactory to the Administrative Agentextent such financial statements cover a period when Section 6.09 is applicable, stating to the effect that:
(a) The present fair saleable value extent available on commercially reasonable terms and in accordance with the standards of the assets of each Public Company Accounting Oversight Board (United States), a written statement of the Borrower and each Subsidiary independent certified public accountants reporting on such financial statements stating (A) whether in connection with their audit examination, such independent certified public accountants obtained knowledge of the Borrower (other than CalGen Finance) exceeds the amount required to pay the probable liability on its existing debts, respectively (whether matured any condition or unmatured, liquidated or unliquidated, absolute, fixed or contingent), as they become absolute and matured, and event that constitutes an Event of Default as a result of failure to comply with Section 6.09 (to the consummation extent applicable) and (B) if such independent certified public accountants obtained knowledge of the transactions contemplated herein and in the Bank Book, will continue to exceed such amount;
(b) Each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) does not, and, as a result of the consummation of the transactions contemplated in this Agreementcondition, the other Financing Documents and the Bank Book, will not, have unreasonably small capital for it nature thereof; provided that such accountants shall not be liable by reason of any failure to carry on its business as proposed to be conducted;
(c) Neither the Borrower nor any Subsidiary obtain knowledge of the Borrower (other than CalGen Finance) is incurring obligations or making transfers under any evidence such an Event of indebtedness with the intent to hinder, delay or defraud any entity to which it is or will become indebtedDefault; and
(d2) Nothing has come Concurrently with the delivery of any financial statements pursuant to the Borrower's attention to cause it to believe that: Section 5.01(a) or (b), (i) X.X. Xxxx is not qualified to pass on questions relating to the technical, environmental and economic aspects a certificate of a Financial Officer of the projects operated by Loan Parties stating that such Financial Officer has obtained no knowledge of the CalGen Companies existence of any Default or Event of Default that is continuing except as specified in such projects are described in the Bank Book; certificate, (ii) to the assumptions included in X.X. Xxxx'x report dated March 15extent such financial statements cover a period when Section 6.09 is applicable, 2004a Compliance Certificate showing calculations for determining compliance by the Loan Parties with Section 6.09 as of the last day of the applicable fiscal quarter or fiscal year, entitled "Independent Engineer's Reportas the case may be covered by such financial statements and, Calpine Generating Companyif such Compliance Certificate demonstrates an Event of Default of any Financial Performance Covenant, LLC Facilities" a notice of intent to cure (the "Xxxx Report"), are not reasonable; a “Notice of Intent to Cure”) such Event of Default pursuant to Section 8.04 may be delivered with such Compliance Certificate and (iii) a list identifying each Unrestricted Subsidiary (if any) (and, in the information provided by event there are any Unrestricted Subsidiaries, a reconciliation or narrative explanation of such financial statements depicting or explaining the CalGen Companies to X.results of Borrower, Borrower and the Restricted Subsidiaries, on the one hand and the Unrestricted Subsidiaries on the other hand);
Appears in 1 contract
Samples: Credit Agreement (Stockbridge/Sbe Investment Company, LLC)
Financial Officer’s Certificate. The chief (i) Concurrently with any delivery of financial officer statements under Section 5.01(a) or (b), a Compliance Certificate (which delivery may, unless the Administrative Agent or a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes) (A) certifying that no Default has occurred or, if such a Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, (B) concurrently with any delivery of financial statements under Section 5.01(a) above (commencing with the financial statements for the first complete fiscal year of the Borrower shall have furnished a certificate, dated beginning after the Closing Date), setting forth the Borrower’s calculation of Excess Cash Flow, (C) showing a reconciliation of Consolidated EBITDA to the net income set forth on the statement of income, such reconciliation to be on a quarterly basis, and, if such Compliance Certificate demonstrates an Event of Default of the Financial Performance Covenant, any of the Specified Holders may deliver, together with such Compliance Certificate, notice of their intent to cure (a “Notice of Intent to Cure”) such Event of Default pursuant to Section 8.04; provided that the delivery of a Notice of Intent to Cure shall in no way affect or alter the occurrence, existence or continuation of any such Event of Default or the rights, benefits, powers and remedies of the Administrative Agent and the Lenders under any Loan Document, and (D)(x) specifying all Investments made during the prior fiscal quarter in reliance on Section 6.04(r) and specifying which clause of Section 6.04(r) such Investment was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the amount thereof elected to be so applied, the Total Net Leverage Ratio and, in form the case of Investments made pursuant to Section 6.04(r)(iii), the amount of Liquidity, (y) specifying all Dividends made during the prior fiscal quarter in reliance on Section 6.08(d) and substance satisfactory specifying which clause of Section 6.08(d) such Dividend was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the amount thereof elected to be so applied, the Total Net Leverage Ratio and, in the case of Dividends made pursuant to Section 6.08(d)(ii), the amount of Liquidity, and (z) specifying all Permitted Prepayments made during the prior fiscal quarter in reliance on Section 6.11(a) and specifying which clause of Section 6.11(a) such Permitted Prepayment was made pursuant to and calculating in reasonable detail the amount of the Cumulative Credit or Annual Credit, as applicable, immediately prior to such election and the amount thereof elected to be so applied, the Total Net Leverage Ratio and, in the case of a Permitted Prepayment made pursuant to Section 6.11(a)(B), the amount of Liquidity, and (ii) to the Administrative Agentextent any Unrestricted Subsidiaries are in existence during the period covered by such financial statements, stating to consolidating balance sheets, statements of income and cash flows separating out the effect that:
(a) The present fair saleable value of the assets of each results of the Borrower and each Subsidiary of its Restricted Subsidiaries, on the Borrower (other than CalGen Finance) exceeds the amount required to pay the probable liability on its existing debts, respectively (whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent), as they become absolute and maturedone hand, and as a result of the consummation of Unrestricted Subsidiaries, on the transactions contemplated herein and in the Bank Book, will continue to exceed such amountother;
(b) Each of the Borrower and each Subsidiary of the Borrower (other than CalGen Finance) does not, and, as a result of the consummation of the transactions contemplated in this Agreement, the other Financing Documents and the Bank Book, will not, have unreasonably small capital for it to carry on its business as proposed to be conducted;
(c) Neither the Borrower nor any Subsidiary of the Borrower (other than CalGen Finance) is incurring obligations or making transfers under any evidence of indebtedness with the intent to hinder, delay or defraud any entity to which it is or will become indebted; and
(d) Nothing has come to the Borrower's attention to cause it to believe that: (i) X.X. Xxxx is not qualified to pass on questions relating to the technical, environmental and economic aspects of the projects operated by the CalGen Companies as such projects are described in the Bank Book; (ii) the assumptions included in X.X. Xxxx'x report dated March 15, 2004, entitled "Independent Engineer's Report, Calpine Generating Company, LLC Facilities" (the "Xxxx Report"), are not reasonable; (iii) the information provided by the CalGen Companies to X.
Appears in 1 contract
Samples: Credit Agreement (Novelis Inc.)