Financial Statements and Information. The Borrower shall furnish or cause to be furnished to the Lender: (a) within 90 days after the end of each fiscal year: (i) a copy of the Borrower’s Annual Report on Form 10-K in respect of such fiscal year, together with the financial statements required to be attached thereto, which statements above shall be audited and reported on by the Accountants (without (x) a “going concern” or like qualification or exception, (y) any qualification or exception as to the scope of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.14 hereof (each, an “Impermissible Qualification”)) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; and (ii) a copy of its unaudited consolidating balance sheet and related unaudited statements of income, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and (iii) a copy of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial conditions and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied; (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year: (i) a copy of the Borrower’s Quarterly Report on Form 10-Q in respect of such fiscal quarter, together with the financial statements required to be attached thereto; and (ii) a copy of its unaudited consolidating balance sheet and related unaudited statements of income and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and (iii) a copy of the unaudited combined balance sheet and related unaudited statements of income and cash flows with respect to all Domestic Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied; (c) concurrently with any delivery of financial statements under subsections (a) or (b) above, a certificate (a “Compliance Certificate”) signed by a Financial Officer of the Borrower, substantially in the form attached hereto as Exhibit “E” and made a part hereof, (i) certifying as to whether a Default has occurred and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof, (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.4 hereof and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors as of the date of such Compliance Certificate; (d) concurrently with any delivery of financial statements under subsections (a) or (b) above, a report of sales backlogs for major product lines as of the end of the relevant quarterly or annual period; (e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and (f) promptly following any request therefor, such other information regarding the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Lender may reasonably request.
Appears in 1 contract
Financial Statements and Information. The Borrower shall furnish Furnish or cause to be furnished to Agent and each Lender a copy of each of the Lenderfollowing within the times indicated:
(a) as soon as available and in any event no later than one hundred five (105) days after the end of Borrower’s and each Guarantor’s fiscal year, (i) annual audited consolidated financial statements for Borrower and its Subsidiaires, and all notes thereto, including a balance sheet and statements of income, retained earnings and cash flows for such fiscal year and the immediately preceding fiscal year in comparative form, all prepared in conformity with GAAP on a consolidated basis and accompanied by a report and opinion of independent certified public accountants satisfactory to Majority Lenders stating that such accountants have conducted audits of such financial statements in accordance with generally accepted auditing standards and that, in their opinion, such financial statements present fairly, in all material respects, Borrower’s and each Guarantor’s, as applicable, financial position as of their date and the results of Borrower’s and each Guarantor’s, as applicable, operations and cash flows for the period they covered in conformity with GAAP, and (ii) annual unaudited consolidated financial statements for each Guarantor, including a balance sheet and combined statements of income, retained earnings and cash flows for such fiscal year and the immediately preceding fiscal year in comparative form, all prepared in accordance with GAAP on a consolidated basis as applied in the preparation of the audited financial statements described in clause (a)(i) above and certified on behalf of Borrower or such Guarantor, as applicable, by an appropriate officer or other responsible party acceptable to Agent;
(b) as soon as available but in any event within 90 fifty (50) days after the end of each fiscal year:
(i) a copy of the Borrower’s Annual Report on Form 10-K in respect of such fiscal yearquarter, together with the financial statements required to be attached thereto, which statements above shall be audited and reported on by the Accountants (without (x) a “going concern” or like qualification or exception, (y) any qualification or exception as to the scope of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.14 hereof (each, an “Impermissible Qualification”)) to the effect that such unaudited consolidated financial statements present fairly in all material respects the financial condition and results of operations of the for Borrower and its consolidated Subsidiaries each Guarantor, including a balance sheet as at the close of such quarter, and a cash flow and income statement for such quarter, all prepared in accordance with GAAP on a consolidated basis in accordance with GAAP consistently applied; and
(ii) a copy and certified on behalf of its unaudited consolidating balance sheet and related unaudited statements of incomeBorrower or such Guarantor, stockholders’ equity and cash flows as of the end of and for such yearapplicable, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject an appropriate officer or other responsible party acceptable to the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial conditions and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently appliedAgent;
(bc) as soon as available and in any event within 45 thirty (30) days after the end of each of month, unaudited consolidated financial statements for Borrower and each Guarantor, including a balance sheet as at the first three fiscal quarters of each fiscal year:
(i) a copy of the Borrower’s Quarterly Report on Form 10-Q in respect close of such fiscal quartermonth, together with the financial statements required to be attached thereto; and
(ii) and a copy of its unaudited consolidating balance sheet cash flow and related unaudited statements of income and cash flows as of the end of and statement for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearmonth, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis prepared in accordance with GAAP consistently applied, subject to normal year-end audit adjustments on a consolidated basis and the absence certified on behalf of footnotes, together with a schedule of other financial information consisting of consolidating Borrower or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income and cash flows with respect to all Domestic Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheetGuarantor, as of the end of) the previous fiscal yearapplicable, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject an appropriate officer or other responsible party acceptable to normal year-end adjustments and the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(c) concurrently with any delivery of financial statements under subsections (a) or (b) above, a certificate (a “Compliance Certificate”) signed by a Financial Officer of the Borrower, substantially in the form attached hereto as Exhibit “E” and made a part hereof, (i) certifying as to whether a Default has occurred and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof, (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.4 hereof and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors as of the date of such Compliance CertificateAgent;
(d) concurrently with as soon as available and in any delivery of financial statements under subsections event within fifteen (a15) or (b) above, a report of sales backlogs for major product lines as of days after the end of the relevant quarterly or annual periodeach calendar month a complete aging of all Accounts Receivable by Borrower;
(e) promptly after as soon as available and in any event within thirty (30) days prior to the same become publicly availableend of each fiscal year of Borrower, (i) annual operating budgets (including income statements, balance sheets and cash flow statements, by month) for the upcoming fiscal year of Borrower, and (ii) annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower’s board of directors, together with any related business forecasts used in the preparation of such annual financial projections, which budgets and projections are subject to the review and approval of the Majority Lenders;
(f) as soon as available and in any event within five (5) days of filing, copies of all periodic and other reports, proxy statements and other materials filed by Borrower with the Borrower SEC, any Governmental Authority succeeding to any or any Subsidiary with all of the functions of the SEC or with any national securities exchange, or distributed by the Borrower to its shareholders generallyshareholders, as the case may be;
(g) promptly following the discovery thereof, information in reasonable detail correcting any information provided to Agent or any Lender which Borrower, any Guarantor or any Subsidiary discovers to be inaccurate or misleading in any material respect; and
(fh) promptly following The Agent and Lenders shall have received all closing certificates, corporate documents, evidence of authorization, forms and information required by the SBA, including without limitation SBA Forms 480, 652 and 1031, Part A and other agreements, instruments and documents in respect of any request thereforaspect or consequence of the Loan as the Agent and Lenders may reasonably request, all of which shall be in form and substance reasonably satisfactory to the Agent.
(i) Within one hundred twenty (120) days after the end of the fiscal year of Borrower, respectively, Borrower will furnish or cause to be furnished to Agent information required by the SBA concerning the economic impact of the Term Loan, for (or as of the end of) each fiscal year, including but not limited to, information concerning full-time equivalent employees; Federal, state and local income taxes paid; gross revenue; source of revenue growth; after-tax profit or loss; and Federal, state and local income tax withholding. Such information shall be forwarded by Borrower on a form provided by Agent, if Agent or any Lender so requests. The Borrower will also furnish or cause to be furnished to Agent such other information regarding the business, affairs and condition of the Borrower as Agent or any Lender may from time to time reasonably request; provided, however, that unfettered access to trade secrets and confidential proprietary information will not be provided.
(j) such other information relating to Borrower’s, any Guarantor’s or any Subsidiary’s financial condition and affairs as Agent or any Lender may from time to time reasonably requests or as may be required from time to time by any Loan Document.
(k) contemporaneously with the delivery of the annual and quarterly financial statements referred to in clauses (a) and (b) above, or such financial reports and information as Agent shall require evidencing compliance with the terms applicable financial covenants, which reports and information shall include, at a minimum, delivery to Agent and each of this Agreementthe Lenders of an officer’s certificate substantially in the form set forth on Exhibit B attached hereto, signed by an authorized financial or accounting officer of Borrower (or any other authorized officer satisfactory to Agent) (a “Compliance Certificate”), and, if requested by Agent, back-up documentation (including invoices, receipts and other evidence of costs incurred during such quarter as Agent shall reasonably require) evidencing the Lender may reasonably requestpropriety of the deductions from revenues in determining such compliance.
Appears in 1 contract
Financial Statements and Information. The So long as any of the Obligations shall be outstanding, Borrower shall will furnish or cause to be furnished to the Agent (with sufficient copies for each Lender:):
(a) as soon as available and in any event within 45 days after the end of each fiscal quarter, copies of the consolidated and consolidating balance sheets of Borrower and its Subsidiaries as of the end of such fiscal quarter, and of the related consolidated and consolidating statements of operations, earnings and cash flows for such fiscal quarter and for the portion of the fiscal year of Borrower ended with the last day of such fiscal quarter, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget of Borrower and its Subsidiaries for such period, all such statements being Certified by the chief financial officer of Borrower;
(b) as soon as available and in any event within 90 days after the end of each fiscal year:
(i) a copy year of Borrower, copies of the Borrower’s Annual Report on Form 10-K in respect audited consolidated and consolidating balance sheets of Borrower and its Subsidiaries as of the end of such fiscal year, and of the related audited consolidated and consolidating statements of operations, earnings and cash flows for such fiscal year, together with the financial statements required to be attached notes thereto, which statements above shall be all in reasonable detail and stating in comparative form (i) the respective audited consolidated and reported on by consolidating figures as of the Accountants end of and for the previous fiscal year and (without ii) the corresponding figures from the consolidated budget of Borrower and its Subsidiaries for such fiscal year, (x) in the case of such audited consolidated financial statements, accompanied by a “going concern” report thereon of Arthxx Xxxexxxx, XXP, or like qualification or exceptionother independent public accountants selected by Borrower and acceptable to Agent (the "Accountants"), (y) any qualification or exception which report shall be accompanied by a loan compliance letter addressed to Agent and unqualified as to the going concern and scope of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.14 hereof (each, an “Impermissible Qualification”)) to the effect shall state that such consolidated financial statements present fairly in all material respects the consolidated financial condition and results position of operations of the Borrower and its Subsidiaries as at the end of such fiscal year and the consolidated Subsidiaries results of their operations and cash flows for such fiscal year in conformity with GAAP applied on a basis consistent with prior years and that the examination by the Accountants in connection with such consolidated basis financial statements has been made in accordance with GAAP consistently applied; and
generally accepted auditing standards, and (iiy) a copy in the case of its unaudited consolidating balance sheet and related unaudited statements of income, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identifiedfinancial statements, in accordance with GAAP consistently applied; and
(iii) a copy Certified by the chief financial officer of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial conditions and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(bc) within 45 days after the end of each fiscal quarter of Borrower, an Officer's Certificate of Borrower (1) setting forth calculations in reasonable detail demonstrating whether or not as at the first three fiscal quarters of each fiscal year:
(i) a copy of the Borrower’s Quarterly Report on Form 10-Q in respect end of such fiscal quarterquarter Borrower was in compliance with Sections 7.7, together with 7.8 and 7.16 of this Agreement and (2) stating that, based upon such examination or investigation and review of this Agreement and other Loan Documents as in the financial statements required to be attached thereto; and
(ii) a copy of its unaudited consolidating balance sheet and related unaudited statements of income and cash flows as opinion of the end of and for such fiscal quarter and signer is necessary to enable the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject signer to normal year-end audit adjustments and the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income and cash flows with respect to all Domestic Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(c) concurrently with any delivery of financial statements under subsections (a) or (b) above, a certificate (a “Compliance Certificate”) signed by a Financial Officer of the Borrower, substantially in the form attached hereto as Exhibit “E” and made a part hereof, (i) certifying as to whether a Default has occurred and, if so, specifying the details thereof and any action taken or proposed to be taken express an informed opinion with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof, (iii) stating whether any change in GAAP or no default by Borrower and its Subsidiaries in the application thereof has occurred since the date fulfillment of any of the audited financial statements referred to in Section 4.4 hereof andterms, covenants, provisions or conditions of this Agreement or any of the Loan Documents exists or has existed during such period or, if any such change a default shall exist or have existed, the nature and period of existence thereof and what action Borrower (or the applicable Subsidiary) has occurredtaken, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors as of the date of such Compliance Certificateis taking or proposes to take with respect thereto;
(d) concurrently with any delivery of financial statements under subsections (a) or (b) above, a report of sales backlogs for major product lines as of the end of the relevant quarterly or annual period;
(e) promptly after the same become publicly availableare available and in any event within 10 days of filing, copies of all periodic such proxy statements, financial statements, notices and other reports, proxy statements and other materials filed by the reports as Borrower or any Subsidiary shall send or make available generally to any of its securityholders, and copies of all regular and periodic reports (including without limitation annual reports on Form 10-K and quarterly reports on Form 10-Q), all reports on Form 8-K and all registration statements which Borrower or any Subsidiary may file with the SEC or with any national securities exchange;
(e) within 20 days after the last Business Day of each calendar month, or distributed Borrower shall deliver to Agent and each Lender (i) a certificate in the form of Exhibit E hereto ("Borrowing Base Certificate") 54 showing the Borrowing Base as of the close of business on the last Business Day of the immediately preceding calendar month, (ii) an aged trial balance of all Accounts of Borrower and its Subsidiaries as of such date ("Accounts Trial Balance"), indicating which Accounts are current, up to 90 days, and more than 90 days past the invoice date, (iii) an Inventory analysis (including raw materials, work in progress and finished Inventory), and (iv) an accounts payable aging, in each case certified as complete and correct on behalf of Borrower by the Borrower to its shareholders generally, as the case may be; andan authorized officer of Borrower;
(f) at any time when an Event of Default shall have occurred and be continuing, upon the request of Agent, Borrower shall provide Agent with a Borrowing Base Certificate with such frequency as Agent shall specify. Upon request by Agent, Borrower shall furnish copies of any other material reports, documents or information, in a form and with such specificity as is reasonably satisfactory to Agent (to the extent such reports, documents and information can be produced or furnished without unreasonable cost), concerning Accounts and Inventory included, described or referred to in such Borrowing Base Certificates, including without limitation, copies of all invoices prepared in connection with such Accounts;
(g) promptly following after the receipt thereof by Borrower and in any request thereforevent within 3 Business Days thereof, copies of any reports as to material inadequacies in accounting controls (including reports as to the absence of any such other information regarding inadequacies) submitted to Borrower by the Accountants in connection with any audit of such corporation made by the Accountants;
(h) promptly (and in any event within 3 Business Days) after becoming aware of (1) the existence of any Default or Event of Default on the part of Borrower, an officer's certificate of Borrower specifying the nature and period of existence thereof and what action Borrower is taking or any Subsidiary, or compliance proposes to take with the terms of this Agreement, as the Lender may reasonably request.respect thereto; or
Appears in 1 contract
Samples: Loan Agreement (Summa Industries)
Financial Statements and Information. The So long as any of the ------------------------------------ Obligations shall be outstanding, Borrower shall will furnish or cause to be furnished to the Agent (with sufficient copies for each Lender:):
(a) as soon as available and in any event within 90 100 days after the end of each fiscal year:
(i) a copy year of Borrower, copies of the Borrower’s Annual Report on Form 10-K in respect audited consolidated and (to the extent requested by Agent) consolidating balance sheets of Borrower and its Subsidiaries as of the end of such fiscal year, and of the related audited consolidated (and, if requested, consolidating) statements of operations, earnings and cash flows for such fiscal year, together with the financial statements required to be attached notes thereto, which statements above shall be all in reasonable detail and stating in comparative form the respective audited consolidated (and, if requested, consolidating) figures as of the end of and reported on by for the Accountants (without previous fiscal year, (x) in the case of such audited consolidated financial statements, accompanied by a “going concern” report thereon of Deloitte & Touche LLP, or like qualification or exceptionother independent public accountants selected by Borrower and acceptable to Agent (the "Accountants"), (y) any qualification or exception which report shall be unqualified as to the going concern and scope ----------- of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.14 hereof (each, an “Impermissible Qualification”)) to the effect shall state that such consolidated financial statements present fairly in all material respects the consolidated financial condition and results position of operations of the Borrower and its Subsidiaries as at the end of such fiscal year and the consolidated Subsidiaries results of their operations and cash flows for such fiscal year in conformity with GAAP applied on a basis consistent with prior years and that the examination by the Accountants in connection with such consolidated basis financial statements has been made in accordance with GAAP consistently applied; and
generally accepted auditing standards, and (iiy) a copy in the case of its unaudited any consolidating balance sheet and related unaudited statements financial statements, Certified by the chief financial officer of income, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial conditions and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year:
(i) a copy of the Borrower’s Quarterly Report on Form 10-Q in respect of such fiscal quarter, together with copies of the financial statements required unaudited consolidated and (to be attached thereto; and
(iithe extent requested by Agent) a copy of its unaudited consolidating balance sheet and related unaudited statements sheets of income and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income and cash flows with respect to all Domestic Subsidiaries as of the end of such fiscal quarter and for the portion of Borrower's fiscal year then ended, and of the related unaudited consolidated (and, if requested, consolidating) statements of operations, earnings and cash flows for such fiscal quarter and a comparison to budget, accompanied by an Officer's Certificate of Borrower (1) setting forth calculations in reasonable detail demonstrating whether or not as at the then elapsed portion end of such fiscal yearquarter Borrower was in compliance with Sections 7.7, setting forth 7.8, 7.9 and -------------------------- 7.16 of this Agreement and (2) stating that, based upon such examination or ---- investigation and review of this Agreement and other Loan Documents as in each case in comparative form the figures for opinion of the corresponding signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default exists or has existed during such period or periods of (or, in if a Default or Event of Default shall exist or have existed, the case nature and period of existence thereof and what action Borrower (or the balance sheetapplicable Subsidiary) has taken, as of the end of) the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance is taking or proposes to take with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently appliedrespect thereto;
(c) concurrently promptly after the same are available and in any event within 5 days of filing, copies of all such proxy statements, financial statements, notices and reports as Borrower or any Subsidiary shall send or make available generally to any of its securityholders, and copies of all regular and periodic reports (including without limitation annual reports on Form 10-K and quarterly reports on Form 10-Q), all reports on Form 8-K and all registration statements which Borrower or any Subsidiary may file with the SEC or with any delivery of financial statements under subsections (a) or (b) above, a certificate (a “Compliance Certificate”) signed by a Financial Officer of the Borrower, substantially in the form attached hereto as Exhibit “E” and made a part hereof, (i) certifying as to whether a Default has occurred and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof, (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.4 hereof and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors as of the date of such Compliance Certificatesecurities exchange;
(d) concurrently with within 30 days after the commencement of each fiscal year, Borrower shall deliver to Agent a copy of a consolidated business plan for Borrower and its Subsidiaries for such fiscal year, which business plan shall contain a summary annual consolidated budget of Borrower and its Subsidiaries for such fiscal year, consolidated balance sheets as well as consolidated projections of sales, cash flow and borrowing needs for such fiscal year, on a quarterly basis, and Borrower shall deliver to Agent any delivery of financial statements under subsections (a) or (b) above, a report of sales backlogs for major product lines as of material revision to any such budget promptly upon the end of the relevant quarterly or annual periodadoption thereof;
(e) promptly after the same become publicly availablereceipt thereof by Borrower and in any event within 3 Business Days thereof, copies of all periodic and other reports, proxy statements and other materials filed any final reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to Borrower by the Borrower or any Subsidiary with the SEC or Accountants in connection with any national securities exchange, or distributed audit of such corporation made by the Borrower to its shareholders generally, as the case may be; andAccountants;
(f) promptly following (and in any request thereforevent within 5 Business Days) after becoming aware of (1) the existence of any Default or Event of Default, an officer's certificate of Borrower specifying the nature and period of existence thereof and what action Borrower (or any of its Subsidiaries) is taking or proposes to take with respect thereto; or (2) any Indebtedness of Borrower or of any of its Subsidiaries in excess of $500,000 in the aggregate being declared due and payable before its expressed maturity, or any holder of such other information regarding Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an officer's certificate of Borrower describing the nature and status of such matters and what action Borrower (or any of its Subsidiaries) is taking or proposes to take with respect thereto;
(g) promptly and in any event within 5 Business Days after Borrower knows or, in the case of a Pension Plan has reason to know, that a Reportable Event with respect to any Pension Plan has occurred, that any Pension Plan or Multi Employer Plan is or reasonably may be terminated, reorganized, partitioned or declared insolvent under Title IV of ERISA, or Borrower or any Subsidiaryof its ERISA Affiliates will or reasonably may incur any material liability to or on account of a Pension Plan or Multi Employer Plan under Title IV of ERISA or any other liability under ERISA which could reasonably have a Material Adverse Effect has been asserted against Borrower or any of its ERISA Affiliates, an officer's certificate of Borrower setting forth information as to such occurrence and what action, if any, Borrower or an ERISA Affiliate is required or proposes to take with respect thereto, together with any notices concerning such occurrences which are (a) required to be filed by Borrower or an ERISA Affiliate or the plan administrator of any such Pension Plan controlled by Borrower or such ERISA Affiliate with the Internal Revenue Service or the PBGC, or compliance (b) received by Borrower or such ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multi Employer Plan;
(h) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7.1, an officer's certificate of Borrower setting forth the terms details of ----------- such Material Adverse Effect and stating what action Borrower has taken or proposes to take with respect thereto;
(i) promptly (and in any event within 7 days) after Borrower knows of (a) the institution of, or reasonably credible threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting Borrower or any of its Property, or (b) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a Material Adverse Effect, an Officer's Certificate of Borrower describing the nature and status of such matter in reasonable detail;
(j) any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement, as Agreement and/or the affairs of Borrower that Agent or any Lender may from time to time reasonably requestrequest and which is capable of being obtained, produced or generated without unreasonable cost by Borrower or of which Borrower has knowledge.
Appears in 1 contract
Financial Statements and Information. The Borrower shall furnish Furnish or cause to be furnished to Agent a copy of each of the Lenderfollowing within the times indicated:
(a) as soon as available and in any event no later than one hundred five (105) days after the end of Borrower’s and each Guarantor’s fiscal year, (i) annual audited consolidated financial statements for Borrower and its Subsidiaires, and all notes thereto, including a balance sheet and statements of income, retained earnings and cash flows for such fiscal year and the immediately preceding fiscal year in comparative form, all prepared in conformity with GAAP on a consolidated basis and accompanied by a report and opinion of independent certified public accountants satisfactory to Majority Lenders stating that such accountants have conducted audits of such financial statements in accordance with generally accepted auditing standards and that, in their opinion, such financial statements present fairly, in all material respects, Borrower’s and each Guarantor’s, as applicable, financial position as of their date and the results of Borrower’s and each Guarantor’s, as applicable, operations and cash flows for the period they covered in conformity with GAAP, and (ii) annual unaudited consolidated financial statements for each Guarantor, including a balance sheet and combined statements of income, retained earnings and cash flows for such fiscal year and the immediately preceding fiscal year in comparative form, all prepared in accordance with GAAP on a consolidated basis as applied in the preparation of the audited financial statements described in clause (a)(i) above and certified on behalf of Borrower or such Guarantor, as applicable, by an appropriate officer or other responsible party acceptable to Agent;
(b) as soon as available but in any event within 90 fifty (50) days after the end of each fiscal year:
(i) a copy of the Borrower’s Annual Report on Form 10-K in respect of such fiscal yearquarter, together with the financial statements required to be attached thereto, which statements above shall be audited and reported on by the Accountants (without (x) a “going concern” or like qualification or exception, (y) any qualification or exception as to the scope of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.14 hereof (each, an “Impermissible Qualification”)) to the effect that such unaudited consolidated financial statements present fairly in all material respects the financial condition and results of operations of the for Borrower and its consolidated Subsidiaries each Guarantor, including a balance sheet as at the close of such quarter, and a cash flow and income statement for such quarter, all prepared in accordance with GAAP on a consolidated basis in accordance with GAAP consistently applied; and
(ii) a copy and certified on behalf of its unaudited consolidating balance sheet and related unaudited statements of incomeBorrower or such Guarantor, stockholders’ equity and cash flows as of the end of and for such yearapplicable, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject an appropriate officer or other responsible party acceptable to the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial conditions and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently appliedAgent;
(bc) as soon as available and in any event within 45 thirty (30) days after the end of each of month, unaudited consolidated financial statements for Borrower and each Guarantor, including a balance sheet as at the first three fiscal quarters of each fiscal year:
(i) a copy of the Borrower’s Quarterly Report on Form 10-Q in respect close of such fiscal quartermonth, together with the financial statements required to be attached thereto; and
(ii) and a copy of its unaudited consolidating balance sheet cash flow and related unaudited statements of income and cash flows as of the end of and statement for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearmonth, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis prepared in accordance with GAAP consistently applied, subject to normal year-end audit adjustments on a consolidated basis and the absence certified on behalf of footnotes, together with a schedule of other financial information consisting of consolidating Borrower or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income and cash flows with respect to all Domestic Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheetGuarantor, as of the end of) the previous fiscal yearapplicable, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject an appropriate officer or other responsible party acceptable to normal year-end adjustments and the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(c) concurrently with any delivery of financial statements under subsections (a) or (b) above, a certificate (a “Compliance Certificate”) signed by a Financial Officer of the Borrower, substantially in the form attached hereto as Exhibit “E” and made a part hereof, (i) certifying as to whether a Default has occurred and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof, (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.4 hereof and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors as of the date of such Compliance CertificateAgent;
(d) concurrently with as soon as available and in any delivery of financial statements under subsections event within fifteen (a15) or (b) above, a report of sales backlogs for major product lines as of days after the end of the relevant quarterly or annual periodeach calendar month a complete aging of all Accounts Receivable by Borrower;
(e) promptly after as soon as available and in any event within thirty (30) days prior to the same become publicly availableend of each fiscal year of Borrower, (i) annual operating budgets (including income statements, balance sheets and cash flow statements, by month) for the upcoming fiscal year of Borrower, and (ii) annual financial projections for the following fiscal year (on a quarterly basis) as approved by Borrower’s board of directors, together with any related business forecasts used in the preparation of such annual financial projections;
(f) as soon as available and in any event within five (5) days of filing, copies of all periodic and other reports, proxy statements and other materials filed by Borrower with the Borrower SEC, any Governmental Authority succeeding to any or any Subsidiary with all of the functions of the SEC or with any national securities exchange, or distributed by the Borrower to its shareholders generallyshareholders, as the case may be;
(g) promptly following the discovery thereof, information in reasonable detail correcting any information provided to Agent or any Lender which Borrower, any Guarantor or any Subsidiary discovers to be inaccurate or misleading in any material respect;
(h) such other information relating to Borrower’s, any Guarantor’s or any Subsidiary’s financial condition and affairs as Agent or any Lender may from time to time reasonably requests or as may be required from time to time by any Transaction Document; and
(fi) promptly following any request thereforcontemporaneously with the delivery of the annual and quarterly financial statements referred to in clauses (a) and (b) above, such other financial reports and information regarding the Borrower or any Subsidiary, or as Agent shall require evidencing compliance with the terms applicable financial covenants, which reports and information shall include, at a minimum, delivery to Agent and each of this Agreementthe Lenders of an officer’s certificate substantially in the form set forth on Exhibit B attached hereto, signed by an authorized financial or accounting officer of Borrower (or any other authorized officer satisfactory to Agent) (a “Compliance Certificate”), and, if requested by Agent, back-up documentation (including invoices, receipts and other evidence of costs incurred during such quarter as Agent shall reasonably require) evidencing the Lender may reasonably requestpropriety of the deductions from revenues in determining such compliance.
Appears in 1 contract
Samples: Account Purchase Agreement (HII Technologies, Inc.)
Financial Statements and Information. The Borrower Issuer will furnish to each Purchaser, so long as such Purchaser shall furnish be obligated to purchase Notes hereunder or cause shall hold any of the Notes, and to each other holder from time to time of the Notes; provided, however, that the Issuer’s filing of such financial statements and any other information required by this Section 7 with the Securities and Exchange Commission over the EXXXX system within the time period required therefore shall be furnished deemed to satisfy the Lenderfollowing covenants:
(a) as soon as available and in any event within 90 sixty (60) days after the end of each fiscal year:
(i) a copy Fiscal Quarter, the unaudited consolidated and consolidating balance sheets of the Borrower’s Annual Report on Form 10-K in respect Issuer as at the end of such fiscal year, together with period and the financial statements required to be attached thereto, which statements above shall be audited and reported on by the Accountants (without (x) a “going concern” or like qualification or exception, (y) any qualification or exception as to the scope of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.14 hereof (each, an “Impermissible Qualification”)) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; and
(ii) a copy of its unaudited consolidating balance sheet and related unaudited consolidated and consolidating statements of income, stockholders’ equity income and cash flows as for such period and for the portion of the end of and for such yearFiscal Year then ended, setting forth in each case setting forth in comparative form the corresponding figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects same period and the financial condition and results of operations portion of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial conditions and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently appliedpreceding Fiscal Year;
(b) within 45 as soon as available but no later than ninety (90) days after the end of each of Fiscal Year, the first three fiscal quarters of each fiscal year:
(i) a copy of the Borrower’s Quarterly Report on Form 10-Q in respect of such fiscal quarter, together with the financial statements required to be attached thereto; and
(ii) a copy of its unaudited consolidated and consolidating balance sheet and related unaudited statements of income and cash flows the Issuer as of the end of such Fiscal Year and related consolidated and consolidating statements of income, shareholders equity and cash flows for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth Fiscal Year in each case setting forth in comparative form the corresponding figures for the corresponding preceding Fiscal Year, which financial statements shall be in reasonable detail with appropriate notes and be prepared in accordance with GAAP and shall be certified (without any qualification or exception) by BDO Sxxxxxx, LLP or other independent public accountants acceptable to the Required Holders; such financial statements shall be accompanied by (i) a report of such independent certified public accountants stating that, in the opinion of such accountants, the consolidated financial statements present fairly, in all material respects, the consolidated financial position, and the results of operations and the cash flows of the Issuer for the period or periods of (orthen ended in conformity with GAAP, except for inconsistencies resulting from changes in accounting principles and methods agreed to by such accountants and specified in such report, and that, in the case of such financial statements, the balance sheet, as examination by such accountants of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the such financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis statements has been made in accordance with GAAP consistently appliedgenerally accepted auditing standards and accordingly included examining, subject to normal year-end audit adjustments on a test basis, evidence supporting the amounts and the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income and cash flows with respect to all Domestic Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, disclosures in the case of financial statements and assessing the balance sheetaccounting principles used and significant estimates made, as of well as evaluating the end of) the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the overall financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently appliedstatement presentation;
(c) concurrently together with any each delivery of financial statements under subsections (apursuant to Sections 7(a) or (b) aboveand 7(b), a certificate (a “Compliance Certificate”) signed by a Financial Officer of the Borrower, substantially in the form attached hereto as Exhibit “E” and made a part hereof, (i) certifying as to whether a Default has occurred and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof, (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.4 hereof and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors as of the date of such Compliance an Officer’s Certificate;
(d) concurrently promptly upon the receipt thereof (but in any event not later than five Business Days), any reports (including, without limitation, any management letters) submitted to the Issuer or any Subsidiary (other than reports previously delivered pursuant to Section 7(b) above) by independent accountants in connection with any delivery of financial statements under subsections (a) annual, interim or (b) above, a report of sales backlogs for major product lines as special audit made by them of the end books of the relevant quarterly Issuer or annual periodany Subsidiary;
(e) as promptly as practicable (but in any event not later than five days) after the same become publicly are available, copies of (i) all material press releases issued by the Issuer or any Subsidiary, and all notices, proxy statements, financial statements, reports and documents as the Issuer shall send or make available generally to its holders or as any Subsidiary shall send or make available generally to its holders other than the Issuer and (ii) all periodic and other special reports, proxy documents and registration statements (other than on Forms 3,4, 5, 13-D and other materials filed by 13-G) which the Borrower Issuer or any Subsidiary furnishes or files, or any officer or director or stockholder of the Issuer or any of its Subsidiaries furnishes or files with respect to the Issuer or any of its Subsidiaries, with the SEC Commission (or with any analogous foreign governmental authority) or any national securities exchange;
(f) written notice within three (3) Business Days after any Responsible Officer of the Issuer has actual knowledge thereof, or distributed describing the same and, if applicable, the steps being taken by the Borrower Person(s) affected with respect thereto;
(i) the occurrence of any Default or Event of Default;
(ii) the occurrence of any default or event of default by the Issuer or any Subsidiary under any material note, indenture, loan agreement, mortgage, deed of trust, security agreement, lease or other similar agreement, document or instrument to its shareholders generallywhich the Issuer or any Subsidiary, as the case may be, is a party or by which it is bound or to which it is subject;
(iii) the institution of any litigation, arbitration proceeding or governmental or regulatory proceeding affecting the Issuer or any Subsidiary, whether or not considered to be covered by insurance, in which the prayer or claim for relief seeks recovery of an amount in excess of $200,000.00 (or, if no dollar amount is specified in the prayer or claim for relief, in which there is a reasonable likelihood of recovery of an amount in excess of $200,000.00) or any form of equitable relief which, if granted, could reasonably be expected to have a Material Adverse Effect;
(iv) the entry of any judgment or decree against the Issuer or any Subsidiary;
(v) the occurrence of a Reportable Event with respect to any Pension Plan for which a thirty (30) day notice is required under applicable PBGC regulations; the filing of a notice of intent to terminate a Pension Plan by the Issuer, any ERISA Affiliate or any Subsidiary; the institution of proceedings to terminate a Pension Plan by the PBGC or any other Person; the withdrawal in a “complete withdrawal” or a “partial withdrawal” as defined in Sections 4203 and 4205, respectively, of ERISA by the Issuer, any ERISA Affiliate or any Subsidiary from any Multi-Employer Plan; or the incurrence of any material increase in the contingent liability of the Issuer or any Subsidiary with respect to any “employee welfare benefit plan” as defined in Section 3(1) of ERISA which covers retired employees and their beneficiaries; and
(fvi) promptly following the occurrence of any request event which could reasonably be expected to have a Material Adverse Effect;
(g) contemporaneously with its delivery or receipt, a copy of such other material information relating to the Issuer or any of the Subsidiaries as shall be furnished to or received from the Senior Agent and/or the Senior Banks pursuant to the Senior Bank Agreement (including any Permitted Refinancing thereof) or furnished to or received from any other bank, financial institution or other Person to which the Issuer or any of the Subsidiaries is indebted for borrowed money or for any letters of credit (or similar instruments) (other than information relating solely to collateral therefor);
(h) contemporaneously with its delivery, the annual “desktop” appraisal of all aircraft owned by the Issuer;
(i) no later than thirty (30) days after the end of each calendar month, a lease portfolio listing and lease receivables aging report (in form and substance reasonably satisfactory to the Required Holders of Notes) applicable to all leases included in the Aircraft Portfolio;
(j) at the time that payment is made to the holders of Notes in accordance with Section 9.1(a), a calculation of the Discounted Aircraft Portfolio Value and the Maximum Debt to Value Ratio;
(k) by December 31 of each year, budgets and forecasts for the ensuing fiscal year; and
(l) such other information regarding the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Lender from time to time may reasonably requestbe requested.
Appears in 1 contract
Financial Statements and Information. The Borrower shall Maintain, and cause each of its Subsidiaries to maintain, a system of accounting in accordance with GAAP, and furnish or cause to be furnished to the Agent and each Lender:
(a) 1. As soon as available, but in any event within 90 days after the end of each fiscal year:
(i) , a copy of the Borrower’s Annual Report 's annual report on Form 10-K in respect of such fiscal year, together with the financial statements required to be attached theretoannual audited Consolidated Balance Sheets and the related Consolidated Statements of Operations, which statements above shall be audited Stockholders' Equity and reported on by the Accountants (without (x) a “going concern” or like qualification or exception, (y) any qualification or exception as to the scope of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.14 hereof (each, an “Impermissible Qualification”)) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations Cash Flows of the Borrower and its consolidated Subsidiaries on a consolidated basis prepared in accordance conformity with GAAP consistently applied; and
(ii) a copy of its unaudited consolidating balance sheet and related unaudited statements of income, stockholders’ equity and cash flows as of filed with the end of and for such yearSEC, setting forth in each case in comparative form the figures for the previous preceding fiscal year. The Consolidated Balance Sheets and Consolidated Statements of Operations, all Stockholders' Equity and Cash Flows shall be audited and certified without qualification by one of its Financial Officers as presenting fairly the Accountants, which certification shall (1) state that the examination by such Accountants in all material respects the connection with such Consolidated financial condition and results of operations statements has been made in accordance with generally accepted auditing standards and, accordingly, included such tests of the Borrower accounting records and its consolidated Subsidiaries on a consolidating basis such other auditing procedures as were considered necessary in the circumstances, and (2) include the opinion of such Accountants that such Consolidated financial statements have been prepared in accordance with GAAP consistently appliedin a manner consistent with prior fiscal periods, subject to the absence of footnotesexcept as otherwise specified in such opinion.
2. As soon as available, together with a schedule of other financial information consisting of consolidating or combining details but in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial conditions and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(b) any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year:
(i) , a copy of the Borrower’s Quarterly Report 's quarterly report on Form 10-Q in respect of such fiscal quarter, quarter together with the financial statements required to be attached thereto; and
(ii) a copy of its quarterly unaudited consolidating balance sheet Consolidated Balance Sheets and the related unaudited statements Consolidated Statements of income Operations, Stockholders' Equity and cash flows as Cash Flows of the end of Borrower and for such fiscal quarter its Subsidiaries prepared in conformity with GAAP and as filed with the then elapsed portion of such fiscal yearSEC, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous preceding fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower, as presenting fairly being complete and correct in all material respects and as presenting fairly the Consolidated financial condition and the Consolidated results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; andSubsidiaries.
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income and cash flows with respect to all Domestic Subsidiaries as of 3. Within 45 days after the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as first three fiscal quarters of each fiscal year (90 days after the end of the end of) the previous last fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(c) concurrently with any delivery of financial statements under subsections (a) or (b) abovequarter), a certificate (a “Compliance Certificate”) signed , certified by a Financial Officer of the Borrower, substantially in .
4. Such other information as the form attached hereto as Exhibit “E” and made a part hereof, (i) certifying as to whether a Default has occurred and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof, (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.4 hereof and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors as of the date of such Compliance Certificate;
(d) concurrently with any delivery of financial statements under subsections (a) or (b) above, a report of sales backlogs for major product lines as of the end of the relevant quarterly or annual period;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower Agent or any Subsidiary with the SEC or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(f) promptly following any request therefor, such other information regarding the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Lender may reasonably requestrequest from time to time.
Appears in 1 contract
Samples: Credit Agreement (Bisys Group Inc)
Financial Statements and Information. The Borrower and Holdings will furnish to you and to any of your Purchaser Affiliates, so long as you or such Purchaser Affiliate shall furnish be obligated to purchase or cause shall hold any Notes, and to be furnished to the Lendereach other institutional holder of any Notes (such a holder in any such case being hereinafter called an “Eligible Holder”), in duplicate:
(aA) within 90 days after the end of each fiscal year:
(i) a copy of the Borrower’s Annual Report on Form 10-K as soon as available and in respect of such fiscal year, together with the financial statements required to be attached thereto, which statements above shall be audited and reported on by the Accountants (without (x) a “going concern” or like qualification or exception, (y) any qualification or exception as to the scope of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.14 hereof (each, an “Impermissible Qualification”)) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; and
(ii) a copy of its unaudited consolidating balance sheet and related unaudited statements of income, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial conditions and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(b) event within 45 days after the end of each of the first three fiscal quarters of quarterly accounting periods in each fiscal year:year of Holdings (“quarterly accounting period”),
(i1) a copy either (a) copies of the Borrower’s Holdings’ Quarterly Report on Form 10l0-Q in respect of such fiscal quarterfor the quarterly accounting period then ended, together as filed with the financial statements required SEC or (b) if Holdings is not subject to be attached thereto; and
(iiSection 13 or 15(d) a copy of its unaudited consolidating the Exchange Act, copies of the consolidated balance sheet of Holdings and its Subsidiaries as of the end of the quarterly accounting period and of the related unaudited consolidated statements of income operations, shareholders equity and cash flows for such accounting period, all in reasonable detail and stating in comparative form the consolidated figures as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding date and period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified Certified by one an Appropriate Officer of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently appliedHoldings; and
(iii2) a copy written statement in the form of Exhibit F-1 hereto executed by Appropriate Officers of Holdings and the Borrower setting forth computations or other pertinent information in reasonable detail showing as at the end of such quarterly accounting period (a) whether or not the financial covenants set forth in Sections 11.2 through 11.8 hereof, inclusive, have been met, accompanied by calculations setting forth the maximum amount of Funded Debt that could have been incurred pursuant to Sections 11.2(B) and 11.2(C) hereof, and the maximum amount of dividends or distributions that could have been declared or paid pursuant to Section 11.5 hereof, and (b) whether or not Liens on Property or assets of Holdings or its Subsidiaries or securing Debt of Holdings or its Subsidiaries, as the case may be, exceed the threshold set forth in Section 11.1(I) hereof, accompanied by calculations setting forth the maximum amount of additional Funded Debt secured by Liens that could have been incurred under Section 11.1(I) hereof (a “Quarterly Compliance Statement”);
(B) as soon as available and in any event within 90 days after the end of each fiscal year of Holdings,
(1) either (a) copies of Holdings’ Annual Report on Form 10-K and Annual Report to Shareholders, in each case, for the year then ended and as filed with the SEC together with copies of the unaudited combined consolidating balance sheet sheets of Holdings and its Subsidiaries as of the end of such fiscal year and the related unaudited consolidating statements of income operations, or (b) if Holdings is not subject to Section 13 or 15(d) of the Exchange Act, copies of the consolidated and consolidating balance sheets of Holdings and its Subsidiaries as of the end of such fiscal year, and of the related consolidated and consolidating statements of operations and the related consolidated statements of shareholders’ equity and cash flows flows, together with respect the notes to all Domestic Subsidiaries such consolidated statements, which consolidated statements state in comparative form the respective consolidated figures as of the end of and for the previous fiscal year, and in the case of such fiscal quarter consolidated financial statements referred to in subclauses (a) or (b), accompanied by a report thereon of Coopers & Xxxxxxx or other independent public accountants of recognized national standing selected by Holdings (the “Accountants”), which report shall be unqualified as to going concern and scope of audit and shall state that such consolidated financial statements present fairly the then elapsed portion consolidated financial position of Holdings and its Subsidiaries as at the end of such fiscal yearyear and the consolidated results of operations and cash flow for such fiscal year in conformity with GAAP, setting forth and that the examination by the Accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards. Together with each delivery of financial statements or Annual Reports required by this subparagraph (1), the Accountants shall deliver to Holdings or the Borrower (which recipient shall deliver the same to each Purchaser, Purchaser Affiliate and Eligible Holder) their report (on which the Purchasers, Purchaser Affiliates and Eligible Holders shall be entitled to rely) stating that, in making the audit necessary to the certification of such financial statements, they have obtained no knowledge of any Default or Event of Default or, if any such Default or Event of Default has occurred, specifying the nature and period of existence thereof; and
(2) a Quarterly Compliance Statement.
(C) concurrently with the financial statements or reports furnished pursuant to Subsections A and B of this Section 8, a certificate of Appropriate Officers of the Borrower and Holdings in the form of Exhibit F2, stating that, based upon such examination or investigation and review of this Agreement as in the opinion of the signer is necessary to enable the signer to express an informed opinion with respect thereto, no Default or Event of Default by Holdings, the Borrower or any of their Subsidiaries in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement exists or has existed during such period or, if such a Default or Event of Default shall exist or have existed, the nature and period of existence thereof and what action Holdings, the Borrower or such Subsidiary, as the case may be, has taken, is taking or proposes to take with respect thereto;
(D) promptly after the same are available and in comparative form any event within 15 days thereof, copies of all such proxy statements, financial statements, notices and reports as Holdings or any of its Subsidiaries shall send or make available generally to any of their security holders, and copies of all regular and periodic reports and of all registration statements which Holdings or any of its Subsidiaries may file with the figures for the corresponding period SEC or periods with any securities exchange;
(E) promptly (and in any event within 5 days) after becoming aware of (1) the existence of any Default or Event of Default, a certificate of Appropriate Officers of Holdings and the Borrower specifying the nature and period of existence thereof and what action the Borrower or Holdings is taking or proposes to take with respect thereto; or (2) any Debt of Holdings, the Borrower or any Subsidiary being declared due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time shall constitute any such default) under such Debt or the agreement pursuant to which such Debt was issued, a certificate of an Appropriate Officer describing the nature and status of such letters and what action Holdings or such Subsidiary is taking or proposes to take with respect thereto; provided, however, that any Default or Event of Default which is deemed to have arisen upon Holdings or the Borrower’s failure to promptly notify the Purchasers of another Default or Event of Default in accordance with this Section 8(E) shall be deemed to be waived so long as (i) such underlying Default or Event of Default as to which notice is required to be given (the “Underlying Default”) has been completely cured; (ii) the Underlying Default, if it had not been completely cured, would not have had a Material Adverse Effect and (iii) notice of the Underlying Default is delivered within 30 days of its occurrence;
(F) promptly and in any event within 10 days after Holdings or the Borrower knows or, in the case of the balance sheeta Pension Plan has reason to know, that a Reportable Event with respect to any Pension Plan has occurred, that any Pension Plan or Multiemployer Plan is or may be terminated, reorganized, partitioned or declared insolvent under Title IV of ERISA, or that Holdings or any of its Subsidiaries or ERISA Affiliates will or may incur any material liability to or on account of a Pension Plan or Multiemployer Plan under Title IV of ERISA or any other material liability under ERISA has been asserted against Holdings or any of its Subsidiaries or ERISA Affiliates, a certificate of an Appropriate Officer of Holdings setting forth information as of the end of) the previous fiscal yearto such occurrence and what action, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance if any, Holdings or such Subsidiary or ERISA Affiliate is required or proposes to take with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotesrespect thereto, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(c) concurrently with any delivery of financial statements under subsections notices concerning such occurrences which are (a) required to be filed by Holdings or such Subsidiary or ERISA Affiliate or the plan administrator of any such Pension Plan controlled by Holdings or such Subsidiary or ERISA Affiliate with the Internal Revenue Service or the PBGC, or (b) abovereceived by Holdings or such Subsidiary or ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multiemployer Plan;
(G) promptly after the Borrower or Holdings becomes aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 8, a certificate (a “Compliance Certificate”) signed by a Financial of an Appropriate Officer of the Borrower, substantially in the form attached hereto as Exhibit “E” and made a part hereof, (i) certifying as to whether a Default has occurred and, if so, specifying setting forth the details thereof of such Material Adverse Effect and stating what action Holdings, the Borrower or any action of their respective Subsidiaries has taken or proposed proposes to be taken take with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof, (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.4 hereof and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors as of the date of such Compliance Certificate;
(dH) concurrently with promptly (and in any delivery event within 15 days) after the Borrower or Holdings knows of financial statements under subsections (a) the institution of, or threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting Holdings or any of its Subsidiaries or any Property of any of them, or (b) aboveany material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, is likely to have a Material Adverse Effect, a report certificate of sales backlogs for major product lines an Appropriate Officer describing the nature and status of such matter in reasonable detail;
(I) in the event that Borrower is no longer a consolidated Subsidiary of Holdings, financial statements of Borrower and its consolidated Subsidiaries at such times and in such form (together with such certifications) as of are required to be delivered pursuant to Sections 8(A), (B) and (C);
(J) to the extent prepared, not later than 90 days following the end of each fiscal year of Holdings, a copy of the relevant quarterly or annual period;consolidated budget of Holdings and its Subsidiaries prepared by Holdings for the next succeeding fiscal year; and
(eK) promptly after the same become publicly availableany other information, copies of all periodic and other reports, proxy including financial statements and other materials filed by computations, relating to the performance of obligations arising under this Agreement and/or the affairs of Holdings, the Borrower or any Subsidiary with of their Subsidiaries that the SEC Purchaser or with any national securities exchangeother Eligible Holder may from time to time reasonably request and which is capable of being obtained, produced or distributed generated by the Borrower to its shareholders generallyHoldings, as the case may be; and
(f) promptly following any request therefor, such other information regarding the Borrower or such Subsidiary or of which any Subsidiaryof them has knowledge, or including, without limitation, a brief statement describing any significant events relating to Holdings, the Borrower and their Subsidiaries for any fiscal period. It is further understood and agreed that, for the purpose of effecting compliance with Rule 144A promulgated by the terms SEC in connection with any resales of Notes that may hereafter be effected pursuant to the provisions of such Rule, if Holdings is not subject to Section 13 or 15(d) of the Exchange Act, each prospective purchaser of Notes designated by a holder thereof shall have the right to obtain from Holdings and the Borrower, upon the written request of such holder, the information required pursuant to Rule 144A(d)(4) under the Securities Act. Each of Holdings and the Borrower will keep at its principal executive office a true copy of this Agreement, as and cause the Lender may reasonably requestsame to be available for inspection at said offices during normal business hours by any holder of any of the Notes or any prospective purchaser of any thereof designated by the holder thereof.
Appears in 1 contract
Financial Statements and Information. The Borrower Companies will furnish to you in ------------------------------------ duplicate, so long as you shall furnish be obligated to purchase Securities hereunder or cause shall hold any of the Securities, and to be furnished each other institutional holder from time to time of any of the LenderSecurities:
(a) as soon as available and in any event within 90 30 days (35 days in the case of the first three months of each fiscal year) after the end of each monthly accounting period in each fiscal year of the Holding Company, the consolidated and consolidating balance sheets of the Holding Company and its Subsidiaries as at the end of such period and the related consolidated and consolidating statements of income, retained earnings and cash flows for such period and for the portion of such fiscal year ended on the last day of such period, in each case setting forth in comparative form the corresponding figures for the same period and portion of the next preceding fiscal year and the corresponding figures from the budgets for such period and for the fiscal year which includes such period;
(b) as soon as available and in any event within 120 days after the end of each fiscal year:
(i) a copy year of the Borrower’s Annual Report on Form 10-K Holding Company, the consolidated and consolidating balance sheets of the Holding Company and its Subsidiaries as at the end of such year and the related consolidated and consolidating statements of income, retained earnings and cash flows for such year, in respect of each case setting forth in comparative form the corresponding audited figures for the next preceding fiscal year and the corresponding unaudited figures from the budget for such fiscal year, together with all in reasonable detail and accompanied by the standard unqualified report on such audited consolidated financial statements required of the Holding Company and its Subsidiaries of Ernst & Young LLP or other accountants of recognized national standing selected by the Holding Company and satisfactory to be attached theretothe Required Holders of each class of Securities, which report shall (i) state - that the audit of such accountants in connection with such consolidated financial statements above shall be audited has been conducted in accordance with generally accepted auditing standards and reported on that such accountants believe that such audit provides a reasonable basis for their opinion, (ii) contain the -- other statements required from time to time by the American Institute of Certified Public Accountants for an auditor's standard unqualified opinion (without (x) a “going concern” and shall not contain any additional explanatory paragraph concerning uncertainties or like qualification or exceptionother matters), (yiii) any qualification or exception as to include the scope opinion of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.14 hereof (each, an “Impermissible Qualification”)) to the effect --- accountants that such consolidated financial statements present fairly in all material respects the consolidated financial condition position of the Holding Company and its Subsidiaries as at the end of such fiscal year and the consolidated results of operations and cash flows for such fiscal year, in conformity with GAAP, (iv) state that each holder of the Borrower Securities may -- rely upon such report and (v) be accompanied by a separate certificate - from such accountants which shall state (A) that such accountants are familiar with the terms of - the Operative Documents and provide negative assurance relative to compliance with the applicable covenants of the Operative Documents as they relate to accounting matters and (B) whether or not their examination - has disclosed the existence, during or at the end of the fiscal year covered by such financial statements and/or the date of such certificate, of (x) any "reportable condition" (as defined in Statement on Auditing - Standards No. 60 issued by the Auditing Standards Board of the American Institute of Certified Public Accountants) in the internal control structure of the Holding Company or any of its consolidated Subsidiaries on Subsidiaries, (y) any - Change of Control or (z) any Default or Event of Default and, if their - examination has disclosed such a consolidated basis condition or event, specifying in reasonable detail the nature and period of existence thereof;
(c) together with each delivery of financial statements pursuant to sections 7(a) and 7(b), an Officers' Certificate which shall:
(i) certify that such financial statements have been prepared in accordance with GAAP consistently applied; and
(iisubject, in the case of any unaudited financial statements, to normal year-end and audit adjustments and the omission of footnotes) applied on a copy of its unaudited consolidating balance sheet consistent basis throughout the periods covered thereby and related unaudited statements of income, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting present fairly in all material respects the consolidated financial position and the consolidated results of operations and cash flows of the Holding Company and its Subsidiaries as at the end of and for the periods covered thereby in conformity with GAAP;
(ii) state that, after due inquiry, the signers do not have knowledge of the existence, during the fiscal period covered by such financial statements or as at the date of such Officers' Certificate, of (A) any "reportable condition" in the internal - control structure of the Holding Company or any of its Subsidiaries, (B) any Change of Control or (C) any Default or Event of Default, - - or, if such is not the case, specifying in reasonable detail the nature and period of existence thereof and what action the Holding Company or the applicable Subsidiary has taken, is taking and proposes to take with respect thereto;
(iii) show in reasonable detail all computations required to demonstrate compliance, during and at the end of the fiscal period covered by such financial statements, with the provisions of sections 14.5, 14.6, 14.7, 14.15 and 14.16;
(iv) include management's discussion and analysis of the financial condition and the results of operations of the Borrower Holding Company and its consolidated Subsidiaries (containing on a consolidating quarterly basis in accordance with GAAP consistently applied, subject to all material respects the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy specified therefor by Regulation S-K of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries Commission under the Exchange Act) as of at the end of and for the fiscal periods covered by such yearfinancial statements, setting forth in each case in comparative form including a discussion of any significant variation from the figures budgets for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial conditions and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject such periods delivered pursuant to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year:
(i) a copy of the Borrower’s Quarterly Report on Form 10-Q in respect of such fiscal quarter, together with the financial statements required to be attached theretosection 7(h); and
(iiv) a copy of its unaudited consolidating balance sheet and related unaudited statements of income and cash flows as if there shall exist any Subsidiary of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income and cash flows with respect to all Domestic Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(c) concurrently with any delivery of financial statements under subsections (a) or (b) above, a certificate (a “Compliance Certificate”) signed by a Financial Officer of the Borrower, substantially in the form attached hereto as Exhibit “E” and made a part hereof, (i) certifying as to whether a Default has occurred and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof, (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.4 hereof and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors Holding Company as of the date of such Compliance CertificateOfficers' Certificate which did not exist as of the date of the last Officers' Certificate delivered pursuant to this section 7(c), specify with respect to each such Subsidiary the information called for by Exhibit 7(c)(v) and contain a brief --------------- description of the nature of each such Subsidiary's business and certify' that, in connection therewith, all Security Documents required under the Operative Documents (including Note Guarantees) have been executed and delivered to the holders of the Notes and have been duly filed, recorded and/or registered in all applicable offices in accordance with section 14.18;
(d) concurrently as promptly as practicable (but in any event not later than 10 days) after receipt thereof, copies of all reports or written comments (including, without limitation, audit reports, so-called management letters and any other reports or communications with any delivery of financial statements under subsections (a) or (b) above, a report of sales backlogs for major product lines as respect to the internal control structure of the end Holding Company or any of the relevant quarterly its Subsidiaries) submitted by independent accountants or annual periodother management consultants;
(e) at such time as any securities of the Holding Company or any Subsidiary of the Holding Company are publicly held, as promptly as practicable (but in any event not later than 10 days) after the same become publicly are available, copies of (i) all periodic and other reports, proxy statements and other materials filed material press releases issued by the Borrower Holding - Company or any Subsidiary of the Holding Company, and all notices, proxy statements, financial statements, reports and documents as the Holding Company shall send or make available generally to its stockholders or as any Subsidiary of the Holding Company shall send or make available generally to its stockholders other than the Holding Company and (ii) all -- periodic and special reports, documents and registration statements (other than on Form S-8) which the Holding Company or any Subsidiary of the Holding Company furnishes or files, or any officer or director or stockholder of the Holding Company or any of its Subsidiaries furnishes or files with respect to the Holding Company or any of its Subsidiaries, with the SEC Commission (or any analogous foreign governmental authority) or any securities exchange;
(f) as promptly as practicable (but in any event not later than 10 days) after any executive officer of the Holding Company or any of its Subsidiaries becomes aware of the occurrence of any of the following conditions or events, an Officers' Certificate specifying in reasonable detail the nature and period of existence thereof, what action the Holding Company or any of its Subsidiaries has taken, is taking and proposes to take with respect thereto: (i) with respect to any - -21- Plan, any reportable event, as defined in section 4043(b) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date hereof; (ii) the taking by the PBGC of -- steps to institute, or the threatening by the PBGC of the institution of, proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by either Company or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan; or (iii) any event, transaction or condition that could result in the incurrence of --- any liability by either Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, or in the imposition of any Lien on any of the rights, properties or assets of either Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Lien, taken together with any national securities exchangeother such liabilities or Liens then existing, has resulted in, or distributed could reasonably be expected to result in, a Material Adverse Change;
(g) as promptly as practicable (but in any event not later than five days) after the occurrence of any Default or Event of Default, or of any condition or event which has resulted in, or could reasonably be expected to result in, a Material Adverse Change, an Officers' Certificate specifying in reasonable detail the nature and period of existence thereof, what action the Holding Company or any of its Subsidiaries has taken, is taking and proposes to take with respect thereto and the date, if any, on which it is estimated the same will be remedied;
(h) as promptly as practicable (but in any event not later than 30 days) prior to the end of each fiscal year of the Holding Company, an annual budget prepared on a monthly basis for the Holding Company and its Subsidiaries for the succeeding fiscal year (displaying anticipated balance sheets and statements of income, retained earnings and cash flows) and, promptly upon preparation thereof, any other significant budgets which the Holding Company or any of its Subsidiaries prepares and any revisions of such annual or other budgets;
(i) as promptly as practicable (but in any event not later than 10 days) after receipt thereof, copies of all notices and communications given or received by the Borrower Holding Company or any of its Subsidiaries under the Merger Documents;
(j) such other material information relating to the Holding Company or any of its shareholders generallySubsidiaries as shall be furnished to any bank, financial institution or other Person to which the Holding Company or any of its Subsidiaries is indebted for borrowed money or for any letters of credit (or similar instruments) (other than information relating solely to collateral therefor);
(k) as promptly as practicable (but in any event not later than five days) after the case may beoccurrence of any condemnation, taking or destruction of or damage to (whether or not covered by insurance) any of the Collateral having a fair market value in excess of $250,000, an Officers' Certificate specifying in reasonable detail the nature of such event, what action the Holding Company or any of its Subsidiaries has taken, is taking and proposes to take with respect thereto and the date, if any, on which it is estimated the same will be remedied; and
(fl) promptly following any request therefor, such other information regarding the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Lender from time to time may reasonably requestbe requested.
Appears in 1 contract
Financial Statements and Information. The Borrower shall furnish or cause to be furnished to the Agents and each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year:
(i) a copy the audited Consolidated and consolidating balance sheet and related statements of operations, stockholders' equity and cash flows of the Borrower’s Annual Report on Form 10-K Borrower and its Subsidiaries as of the end of and for such year, setting forth in respect of such each case in comparative form the figures for the previous fiscal year, together with the financial statements required to be attached thereto, which statements above shall be audited and all reported on by the Accountants (without (x) a “"going concern” " or like qualification qualification, exception or exceptionexculpatory paragraph, (y) any qualification or exception as to the scope of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.14 hereof 8.16 or 8.17 (each, an “"Impermissible Qualification”")) with an opinion of such Accountants to the effect that such consolidated Consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated Consolidated basis in accordance with GAAP consistently applied; andapplied and that the audit by such Accountants in connection with such Consolidated financial statements has been made in accordance with generally accepted auditing standards;
(ii) a copy Consolidated calculations utilized for computation and determination of its unaudited consolidating the Borrower's compliance with Section 8.16 and 8.17, which may be included in the applicable Compliance Certificate, based upon the audited balance sheet sheets and related unaudited statements of incomeoperations, stockholders’ ' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, ;
(iii) A statement setting forth a comparison between the results reported in each case the audited financial statements delivered pursuant to clause (i) above and results projected to be achieved in comparative form the figures Borrower's Budget for the previous such fiscal year, all certified in reasonable detail and signed by one a Financial Officer of the Borrower’s Financial Officers as presenting fairly in all material respects ;
(iv) a statement signed by the financial conditions and results of operations of said Domestic Subsidiaries Accountants who have reported on a combining basis in accordance with GAAP consistently applied, subject the same to the absence effect that in connection with their examination of footnotessuch financial statements they have reviewed this Agreement and have no knowledge of any event or condition which constitutes a Default or Event of Default or, together if they have such knowledge, specifying the nature and period of existence thereof, provided, however, that in issuing such statement, such Accountants shall not be required to go beyond normal auditing procedures conducted in connection with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;their opinion referred to above.
(b) within 45 forty-five (45) days after the end of each of the first three fiscal quarters quarterly accounting period of each fiscal year (excluding the quarter that ends on the last day of the Borrower's fiscal year), the:
(i) a copy of the Borrower’s Quarterly Report on Form 10-Q in respect of such fiscal quarter, together with the financial statements required to be attached thereto; and
(ii) a copy of its unaudited Consolidated and consolidating balance sheet sheets and the related unaudited statements of income operations, stockholders' equity and cash flows of the Borrower and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of such the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year;
(ii) Consolidated calculations utilized for the computation and determination of the Borrower's compliance with Sections 8.16 and 8.17, all certified by one which may be included in the applicable Compliance Certificate, based upon the unaudited Consolidated and consolidating balance sheets and related statements of its Financial Officers as presenting fairly in all material respects the financial condition operations, stockholders' equity and results of operations cash flows of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income and cash flows with respect to all Domestic Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of such the fiscal year; and
(iii) A statement setting forth a comparison between the results reported in the unaudited financial statements delivered pursuant to clause (i) above and results projected to be achieved in the Borrower's Budget for such quarterly accounting period, all in reasonable detail and signed by a Financial Officer of the Borrower;
(c) As soon as available, but in any event within thirty (30) days after the end of each month (other than any month at the end of a fiscal quarter), the:
(i) unaudited Consolidated and consolidating balance sheets of the Borrower and its Subsidiaries as at the end of such month;
(ii) related unaudited statements of income and surplus and cash flows for such month and for the period from the beginning of the current fiscal year to the end of such month, setting forth in each case in comparative form the figures for with respect to such consolidated financial statements the corresponding figures from the Budget for such period or periods and portion of such fiscal year;
(or, in iii) monthly holdback and attrition summaries with holdback replacements showing the case attrition and holdback activity of the balance sheet, Borrower's accounts as of the end of) the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries such month calculated on a combining basis in accordance with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently appliedtrailing twelve (12) month basis;
(civ) a monthly summary accounts receivable aging report, showing aggregate account receivables by aging categories; and
(v) such other information as the Agents shall request.
(d) concurrently with any delivery of financial statements under subsections (a) or (b) above, a certificate (a “"Compliance Certificate”") signed by of a Financial Officer of the Borrower, substantially in the form attached hereto as of Exhibit “E” and made a part hereofD, (i) certifying as to whether a Default or Event of Default has occurred and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed (1) calculations demonstrating compliance with Sections 8.16 and 8.17, (2) explanations and calculations of the Consolidated components of each of the covenants in Section 7.14 hereof8.16, (3) identification and calculation of any transactions between and among the Borrower and any of its Subsidiaries; and (4) calculations of the amounts, if any, of any Restricted Payments made in the preceding fiscal quarter, (iii) stating and certifying whether there should be a change in the Applicable Margin and (iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.4 hereof and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors as of the date of such Compliance Certificate;
(de) concurrently with any delivery of financial statements under subsections subsection (a) or (b) above, a report of sales backlogs for major product lines as certificate executed by a Financial Officer of the end Borrower (i) setting forth the information required pursuant to the Perfection Certificate or confirming that there has been no change in such information since the date of such certificate or the date of the relevant quarterly most recent certificate delivered pursuant to this subsection (d), (ii) certifying that all Uniform Commercial Code financing statements or annual other appropriate filings, recordings or registrations, including all refilings, rerecordings and re-registrations, containing a description of the Collateral have been filed of record in each governmental, municipal or other appropriate office in each jurisdiction identified pursuant to clause (i) above to the extent necessary to protect and perfect the security interest of the Administrative Agent for a period of not less than 18 months after the date of such certificate (except as noted therein with respect to any continuation statements to be filed within such period) and (iii) identifying Equity Interests (as defined in the Security Agreement) of the Borrower and any Guarantor in existence on the date thereof and not then listed on each Schedule or previously so identified to the Administrative Agent;
(ef) On or before May 31 of each fiscal year, an annual budget prepared on a monthly basis for the Borrower (and for its Subsidiaries, if any) for the next succeeding fiscal year, (displaying anticipated balance sheets and statements of income and surplus and cash flows) (the "Budget"); and promptly after upon preparation thereof, any amendments or revisions thereto or any other significant budgets which the same become publicly Borrower prepares;
(g) Promptly upon their becoming available, copies of all periodic 10-Ks and 10-Qs and other reports, proxy statements and other materials periodic or special reports filed by the Borrower or any Subsidiary, with the SEC, or any such periodic or special reports filed with any other federal, state or local governmental agency or authority, if such other reports indicate any material change in the business, operations, affairs or conditions of the Borrower or any Subsidiary with or if copies thereof are requested by any Lender, and copies of any material notices and other material communications from the SEC or from any other federal, state or local governmental agency or authority which specifically relate to the Borrower or any Subsidiary;
(h) Promptly upon receipt thereof, copies of all audit reports and management letters, if any, submitted to the Borrower or any Subsidiary by the Accountants in connection with each interim or special audit of the Books of the Borrower made by such accountants and, at any national securities exchangetime after the Borrower or any of its Subsidiaries shall become subject to the reporting requirements of the Securities Exchange Act of 1934, or distributed upon request by any Lender, copies of all financial statements, reports, notices and proxy statements, if any, sent by the Borrower to its shareholders generallyshareholders;
(i) Immediately upon receipt or issuance by the Borrower, as copies of all reports, covenant compliance certificates, budgets, projections, requests for waivers, notices of default, requests for amendments or other material correspondence issued in connection with or relating to the case may bePermitted Subordinated Debt, and the Preferred Stock Agreements; and
(fj) promptly Promptly following any request therefor, such other information regarding the Borrower or any Subsidiaryof its Subsidiaries, or compliance with the terms of this Agreement, as the Lender any Credit Party may reasonably request. The Administrative Agent may, at the Borrower's expense, post any and all information delivered by the Borrower under this Section 7.1 to IntraLinks or a similar service for viewing by the Credit Parties.
Appears in 1 contract
Financial Statements and Information. The Borrower shall furnish Furnish or cause to be furnished to Administrative Agent a copy of each of the Lenderfollowing within the times indicated:
(a) within 90 as soon as available and in any event no later than one hundred twenty (120) days after the end of each fiscal year:
year of Borrower, (i) a copy of the Borrower’s Annual Report on Form 10-K in respect of such fiscal year, together with the financial statements required to be attached thereto, which statements above shall be annual audited and reported on by the Accountants (without (x) a “going concern” or like qualification or exception, (y) any qualification or exception as to the scope of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.14 hereof (each, an “Impermissible Qualification”)) to the effect that such consolidated financial statements present fairly for Borrower, and all notes thereto, including a balance sheet and statements of income, retained earnings and cash flows for such fiscal year and the immediately preceding fiscal year in comparative form, all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries prepared in conformity with GAAP on a consolidated basis and accompanied by a report and opinion of Ernst & Young LLP or other firm of independent certified public accountants satisfactory to Administrative Agent and the Required Lenders stating that such accountants have conducted audits of such financial statements in accordance with GAAP consistently applied; and
generally accepted auditing standards and that, in their opinion, such financial statements present fairly, in all material respects, Borrower’s financial position as of their date and the results of Borrower’s operations and cash flows for the period they covered in conformity with GAAP, (ii) a copy copies of its unaudited the internally prepared consolidating balance sheet sheets and related unaudited statements of income, stockholders’ equity and cash flows as income of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its then existing Subsidiaries utilized in the preparation of the consolidated Subsidiaries financial statements of Borrower furnished to Administrative Agent pursuant to clause (i) preceding and certified on a consolidating basis in accordance with GAAP consistently appliedbehalf of Borrower by an appropriate officer or other responsible party acceptable to Administrative Agent, subject to the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
and (iii) a copy Compliance Certificate substantially in the form of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial conditions and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently appliedExhibit D;
(b) as soon as available and in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year:
year of Borrower, (i) ), unaudited consolidated financial statements for Borrower, including a copy of balance sheet as at the Borrower’s Quarterly Report on Form 10-Q in respect close of such fiscal quarter and an income statement and statement of cash flows for such quarter, together all prepared in accordance with the financial statements required GAAP on a consolidated basis and certified on behalf of Borrower by an appropriate officer or other responsible party acceptable to be attached thereto; and
Administrative Agent, and (ii) a copy of its unaudited consolidating balance sheet and related unaudited statements of income and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, Compliance Certificate substantially in the case form of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income and cash flows with respect to all Domestic Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently appliedExhibit D;
(c) concurrently with any delivery of financial statements under subsections (a) or (b) abovepromptly upon Administrative Agent’s request, a certificate (a “Compliance Certificate”) signed complete aging of all accounts receivable by a Financial Officer of the Borrower, substantially in the form attached hereto as Exhibit “E” and made a part hereof, (i) certifying as to whether a Default has occurred and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof, (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.4 hereof and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors as of the date of such Compliance Certificate;
(d) concurrently with promptly following the discovery thereof, information in reasonable detail correcting any delivery information provided to Administrative Agent in reliance upon information from a customer of financial statements under subsections (a) Borrower which Borrower discovers to be inaccurate or (b) above, a report of sales backlogs for major product lines as of the end of the relevant quarterly or annual periodmisleading in any material respect;
(e) promptly after upon the same become publicly availablefiling thereof, copies of all periodic registration statements, and annual, quarterly, monthly or other reports, proxy statements and other materials regular reports filed by the or on behalf of Borrower or any Subsidiary of its Subsidiaries with the SEC or with any national securities exchangeSecurities and Exchange Commission; and CREDIT AGREEMENT - TYLER TECHNOLOGIES, or distributed by the Borrower to its shareholders generally, as the case may be; andINC. Page 33
(f) promptly following any request therefor, such other information regarding the Borrower relating to Borrower’s or any Subsidiary, ’s financial condition and affairs as Administrative Agent may from time to time reasonably request or compliance with the terms of this Agreement, as the Lender may reasonably requestbe required from time to time by any Loan Document.
Appears in 1 contract
Financial Statements and Information. The Borrower and ------------------------------------ Holdings will furnish to you and to any of your Purchaser Affiliates, so long as you or such Purchaser Affiliate shall furnish be obligated to purchase or cause shall hold any Notes, and to be furnished to the Lendereach other institutional holder of any Notes (such a holder in any such case being hereinafter called an "Eligible Holder"), in duplicate:
(aA) within 90 days after the end of each fiscal year:
(i) a copy of the Borrower’s Annual Report on Form 10-K as soon as available and in respect of such fiscal year, together with the financial statements required to be attached thereto, which statements above shall be audited and reported on by the Accountants (without (x) a “going concern” or like qualification or exception, (y) any qualification or exception as to the scope of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.14 hereof (each, an “Impermissible Qualification”)) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; and
(ii) a copy of its unaudited consolidating balance sheet and related unaudited statements of income, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial conditions and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(b) event within 45 days after the end of each of the first three fiscal quarters of quarterly accounting periods in each fiscal year:year of Holdings ("quarterly accounting period"),
(i1) a copy either (a) copies of the Borrower’s Holdings' Quarterly Report on Form 10l0-Q in respect of such fiscal quarterfor the quarterly accounting period then ended, together as filed with the financial statements required Securities and Exchange Commission or (b) if Holdings is not subject to be attached thereto; and
(iiSection 13 or 15(d) a copy of its unaudited consolidating the Exchange Act, copies of the consolidated balance sheet of Holdings and its Subsidiaries as of the end of the quarterly accounting period and of the related unaudited consolidated statements of income operations, shareholders' equity and cash flows for such accounting period, all in reasonable detail and stating in comparative form the consolidated figures as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding date and period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified Certified by one an Appropriate Officer of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently appliedHoldings; and
(iii2) a copy written statement in the form of Exhibit F-1 hereto ----------- executed by Appropriate Officers of Holdings and the Borrower setting forth computations or other pertinent information in reasonable detail showing as at the end of such quarterly accounting period (a) whether or not the financial covenants set forth in Sections 11.2 through 11.8 hereof, inclusive, have been met, accompanied by calculations setting forth the maximum amount of Funded Debt that could have been incurred pursuant to Sections 11.2(B) and 11.2(C) hereof, and the maximum amount of dividends or distributions that could have been declared or paid pursuant to Section 11.5 hereof, and (b) whether or not Liens on Property or assets of Holdings or its Subsidiaries or securing Debt of Holdings or its Subsidiaries, as the case may be, exceed the threshold set forth in Section 11.1(I) hereof, accompanied by calculations setting forth the maximum amount of additional Funded Debt secured by Liens that could have been incurred under Section 11.1(I) hereof (a "Quarterly Compliance Statement");
(B) as soon as available and in any event within 90 days after the end of each fiscal year of Holdings,
(1) either (a) copies of Holdings' Annual Report on Form 10-K and Annual Report to Shareholders, in each case, for the year then ended and as filed with the Securities and Exchange Commission together with copies of the unaudited combined consolidating balance sheet sheets of Holdings and its Subsidiaries as of the end of such fiscal year and the related unaudited consolidating statements of income operations, or (b) if Holdings is not subject to Section 13 or 15(d) of the Exchange Act, copies of the consolidated and consolidating balance sheets of Holdings and its Subsidiaries as of the end of such fiscal year, and of the related consolidated and consolidating statements of operations and the related consolidated statements of shareholders' equity and cash flows flows, together with respect the notes to all Domestic Subsidiaries such consolidated statements, which consolidated statements state in comparative form the respective consolidated figures as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one and in the case of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(c) concurrently with any delivery of such consolidated financial statements under subsections referred to in subclauses (a) or (b) above), a certificate (a “Compliance Certificate”) signed accompanied by a Financial Officer report thereon of Coopers & Xxxxxxx or other independent public accountants of recognized national standing selected by Holdings (the Borrower"Accountants"), substantially in the form attached hereto as Exhibit “E” and made a part hereof, (i) certifying which report shall be unqualified as to whether a Default going concern and scope of audit and shall state that such consolidated financial statements present fairly the consolidated financial position of Holdings and its Subsidiaries as at the end of such fiscal year and the consolidated results of operations and cash flow for such fiscal year in conformity with GAAP, and that the examination by the Accountants in connection with such consolidated financial statements has occurred andbeen made in accordance with generally accepted auditing standards. Together with each delivery of financial statements or Annual Reports required by this subparagraph (1), if sothe Accountants shall deliver to Holdings or the Borrower (which recipient shall deliver the same to each Purchaser, specifying Purchaser Affiliate and Eligible Holder) their report (on which the details thereof Purchasers, Purchaser Affiliates and any action taken or proposed Eligible Holders shall be entitled to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof, (iiirely) stating whether that, in making the audit necessary to the certification of such financial statements, they have obtained no knowledge of any change in GAAP Default or in the application thereof has occurred since the date Event of the audited financial statements referred to in Section 4.4 hereof andDefault or, if any such change Default or Event of Default has occurred, specifying the effect nature and period of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors as of the date of such Compliance Certificate;
(d) concurrently with any delivery of financial statements under subsections (a) or (b) above, a report of sales backlogs for major product lines as of the end of the relevant quarterly or annual period;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may beexistence thereof; and
(f) promptly following any request therefor, such other information regarding the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Lender may reasonably request.
Appears in 1 contract
Financial Statements and Information. The So long as any of the ------------------------------------ Obligations shall be outstanding, Borrower shall will furnish or cause to be furnished to the Agent (with sufficient copies for each Lender:):
(aA) as soon as available and in any event within 90 30 days after the end of each fiscal year:month, copies of the consolidated balance sheets of Borrower and its Subsidiaries as of the end of such fiscal month, and of the related consolidated statements of operations and cash flows for such month and for the portion of the fiscal year of Borrower ended with the last day of such fiscal month, all in reasonable detail, all such statements being certified by the chief financial officer of Borrower;
(iB) a copy as soon as available and in any event within 100 days after the end of each fiscal year of Borrower, copies of the Borrower’s Annual Report on Form 10-K in respect audited consolidated and (to the extent requested by Agent) consolidating balance sheets of Borrower and its Subsidiaries as of the end of such fiscal year, and of the related audited consolidated (and, if requested, consolidating) statements of operations, earnings and cash flows for such fiscal year, together with the financial statements required to be attached notes thereto, which statements above shall be all in reasonable detail and stating in comparative form the respective audited consolidated (and, if requested, consolidating) figures as of the end of and reported on by for the Accountants (without previous fiscal year, (x) in the case of such audited consolidated financial statements, accompanied by a “going concern” report thereon of Deloitte & Touche LLP, or like qualification or exceptionother independent public accountants selected by Borrower and acceptable to Agent (the "Accountants"), (y) any qualification or exception which report shall be unqualified as to the going concern and scope ----------- of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.14 hereof (each, an “Impermissible Qualification”)) to the effect shall state that such consolidated financial statements present fairly in all material respects the consolidated financial condition and results position of operations of the Borrower and its Subsidiaries as at the end of such fiscal year and the consolidated Subsidiaries results of their operations and cash flows for such fiscal year in conformity with GAAP applied on a basis consistent with prior years and that the examination by the Accountants in connection with such consolidated basis financial statements has been made in accordance with GAAP consistently applied; and
generally accepted auditing standards, and (iiy) a copy in the case of its unaudited any consolidating balance sheet and related unaudited statements financial statements, Certified by the chief financial officer of income, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial conditions and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(bC) within 45 30 days after the end of each fiscal quarter, an Officer's Certificate of Borrower (1) setting forth calculations in reasonable detail demonstrating whether or not as at the end of such fiscal quarter Borrower was in compliance with Sections 7.7, 7.8, 7.9 and 7.16 of this Agreement and (2) ------------------------------- stating that, based upon such examination or investigation and review of this Agreement and other Loan Documents as in the opinion of the first three signer is necessary to enable the signer to express an informed opinion with respect thereto, no default by Borrower or any of its Subsidiaries in the fulfillment of any of the terms, covenants, provisions or conditions of this Agreement or any of the Loan Documents exists or has existed during such period or, if such a default shall exist or have existed, the nature and period of existence thereof and what action Borrower (or the applicable Subsidiary) has taken, is taking or proposes to take with respect thereto;
(D) promptly after the same are available and in any event within 7 days of filing, copies of all such proxy statements, financial statements, notices and reports as Borrower or any Subsidiary shall send or make available generally to any of its securityholders, and copies of all regular and periodic reports (including without limitation annual reports on Form 10-K and quarterly reports on Form 10-Q), all reports on Form 8-K and all registration statements which Borrower or any Subsidiary may file with the SEC or with any securities exchange;
(E) within 15 days after the last Business Day of each fiscal quarters month, Borrower shall deliver to Agent and each Lender (i) a certificate in the form of Exhibit E hereto ("Borrowing Base Certificate") showing the Borrowing Base as of --------- -------------------------- the close of business on the last day of the immediately preceding fiscal month, and (ii) an aged trial balance of all Accounts of Borrower and its Subsidiaries as of such date ("Accounts Trial Balance"), indicating which Accounts are ---------------------- current, up to 90 days, and more than 90 days past the invoice date, in each case certified as complete and correct on behalf of Borrower by an authorized officer of Borrower;
(F) within 30 days after the commencement of each fiscal year:
(i) , Borrower shall deliver to Agent a copy of the Borrower’s Quarterly Report on Form 10-Q in respect of such fiscal quarter, together with the financial statements required to be attached thereto; and
(ii) a copy of consolidated business plan for Borrower and its unaudited consolidating balance sheet and related unaudited statements of income and cash flows as of the end of and Subsidiaries for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth which business plan shall contain a summary annual consolidated budget of Borrower and its Subsidiaries for such fiscal year, consolidated balance sheets as well as consolidated projections of sales, cash flow and borrowing needs for such fiscal year, on a quarterly basis, and Borrower shall deliver to Agent any material revision to any such budget promptly upon the adoption thereof;
(G) at any time when an Event of Default shall have occurred and be continuing, upon the request of Agent, Borrower shall provide Agent with a Borrowing Base Certificate with such frequency as Agent shall specify. Upon request by Agent, Borrower shall furnish copies of any other material reports, documents or information, in each case a form and with such specificity as is reasonably satisfactory to Agent (to the extent such reports, documents and information can be produced or furnished without unreasonable cost), concerning Accounts included, described or referred to in comparative form such Borrowing Base Certificates, including without limitation, copies of all invoices prepared in connection with such Accounts;
(H) promptly after the figures for receipt thereof by Borrower and in any event within 3 Business Days thereof, copies of any final reports as to material inadequacies in accounting controls (including reports as to the corresponding period or periods absence of any such inadequacies) submitted to Borrower by the Accountants in connection with any audit of such corporation made by the Accountants;
(I) promptly (and in any event within 3 Business Days) after becoming aware of (1) the existence of any Default or Event of Default, an officer's certificate of Borrower specifying the nature and period of existence thereof and what action Borrower (or any of its Subsidiaries) is taking or proposes to take with respect thereto; or (2) any Indebtedness of Borrower or of any of its Subsidiaries in excess of $100,000 in the aggregate being declared due and payable before its expressed maturity, or any holder of such Indebtedness having the right to declare such Indebtedness due and payable before its expressed maturity, because of the occurrence of any default (or any event which, with notice and/or the lapse of time, shall constitute any such default) under such Indebtedness, an officer's certificate of Borrower describing the nature and status of such matters and what action Borrower (or any of its Subsidiaries) is taking or proposes to take with respect thereto;
(J) promptly and in any event within 3 Business Days after Borrower knows or, in the case of the balance sheeta Pension Plan has reason to know, as that a Reportable Event with respect to any Pension Plan has occurred, that any Pension Plan or Multi Employer Plan is or reasonably may be terminated, reorganized, partitioned or declared insolvent under Title IV of the end of) the previous fiscal yearERISA, all certified by one or Borrower or any of its Financial Officers ERISA Affiliates will or reasonably may incur any material liability to or on account of a Pension Plan or Multi Employer Plan under Title IV of ERISA or any other liability under ERISA which could reasonably have a Material Adverse Effect has been asserted against Borrower or any of its ERISA Affiliates, an officer's certificate of Borrower setting forth information as presenting fairly in all material respects the financial condition to such occurrence and results of operations of the what action, if any, Borrower and its consolidated Subsidiaries on a consolidating basis in accordance or an ERISA Affiliate is required or proposes to take with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesrespect thereto, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with any notices concerning such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income and cash flows with respect to all Domestic Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(c) concurrently with any delivery of financial statements under subsections occurrences which are (a) required to be filed by Borrower or an ERISA Affiliate or the plan administrator of any such Pension Plan controlled by Borrower or such ERISA Affiliate with the Internal Revenue Service or the PBGC, or (b) abovereceived by Borrower or such ERISA Affiliate from any plan administrator of a Pension Plan not under their control or from a Multi Employer Plan;
(K) promptly after becoming aware of any Material Adverse Effect with respect to which notice is not otherwise required to be given pursuant to this Section 7.1, an officer's certificate of Borrower setting forth the details of ----------- such Material Adverse Effect and stating what action Borrower has taken or proposes to take with respect thereto;
(L) promptly (and in any event within 7 days) after Borrower knows of (a) the institution of, or reasonably credible threat of, any action, suit, proceeding, governmental investigation or arbitration against or affecting Borrower or any of its Property, or (b) any material development in any such action, suit, proceeding, governmental investigation or arbitration, which, in either case, if adversely determined, is likely to have a certificate Material Adverse Effect, an Officer's Certificate of Borrower describing the nature and status of such matter in reasonable detail;
(a “Compliance Certificate”M) signed by a Financial Officer at least once in each fiscal year of the Borrower, substantially in the form attached hereto as Exhibit “E” and made a part hereof, (i) certifying as to whether a Default has occurred and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) an Officer's Certificate setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof, (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.4 hereof and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors all material insurance coverage maintained by Borrower as of the date of such Compliance Certificatecertificate and of all insurance planned to be maintained by such Persons in such fiscal year, and (ii) certificates evidencing renewals of such insurance;
(dN) concurrently with any delivery of financial statements under subsections (a) or (b) aboveAgent shall conduct, a report of sales backlogs for major product lines as on behalf of the end Lenders and at Borrower's expense, an audit of the relevant quarterly or annual period;
(e) promptly after Accounts and Inventory of Borrower and its Subsidiaries within 30 days following the same become publicly availableClosing Date and, copies thereafter, not less than once in each calendar year, Agent shall conduct, on behalf of all periodic the Lenders and other reportsat Borrower's expense, proxy statements an audit of the Accounts and other materials filed Inventory of Borrower and its Subsidiaries, the results of which audits shall be reasonably satisfactory to Agent and the Lenders in form and substance and shall be performed by Persons reasonably acceptable to Agent and the Borrower or Lenders, provided that at any Subsidiary with the SEC or with any national securities exchangetime when an Event of Default shall have occurred and be continuing Agent shall be entitled to conduct such additional audits as it may require, or distributed by the Borrower to its shareholders generally, as the case may beat Borrower's sole cost and expense; and
(fO) promptly following any other information, including financial statements and computations, relating to the performance of obligations arising under this Agreement and/or the affairs of Borrower that Agent or any Lender may from time to time reasonably request thereforand which is capable of being obtained, such other information regarding the produced or generated without unreasonable cost by Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Lender may reasonably requestwhich Borrower has knowledge.
Appears in 1 contract
Samples: Loan and Security Agreement (Powerwave Technologies Inc)
Financial Statements and Information. The Borrower shall furnish or cause to be furnished to the Administrative Agent and each Lender:
(aA) within 90 days after the end of each fiscal year:
(i) , a copy of the Borrower’s Annual Report on Form 10-K audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in respect of such each case in comparative form the figures for the previous fiscal year, together with the financial statements required to be attached thereto, which statements above shall be audited and all reported on by the Accountants (without (x) a “"going concern” " or like qualification or exception, (y) any qualification or exception as to the scope of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.14 hereof (each, an “Impermissible Qualification”)8.16) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; and
, it being understood that the Borrower may satisfy its obligations under this subsection (iia) a copy of its unaudited consolidating balance sheet and related unaudited statements of income, stockholders’ equity and cash flows as by furnishing copies of the end Borrower's annual report on Form 10-K in respect of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects together with the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject statements required to the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial conditions and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently appliedbe attached thereto;
(bB) within 45 days after the end of each of the first three fiscal quarters of each fiscal year:
(i) a copy of the Borrower’s Quarterly Report on Form 10-Q in respect of such fiscal quarter, together with the financial statements required to be attached thereto; and
(ii) a copy of its unaudited consolidating consolidated balance sheet and the related unaudited consolidated statements of income operations and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of such the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
it being understood that the Borrower may satisfy its obligations under this subsection (iiib) a copy by furnishing copies of the unaudited combined balance sheet and related unaudited statements of income and cash flows with Borrower's quarterly report on Form 10-Q in respect to all Domestic Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotesquarter, together with a schedule of other the financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently appliedstatements required to be attached thereto;
(cC) concurrently with any delivery of financial statements under subsections (a) or (b) above, a certificate (a “Compliance Certificate”"COMPLIANCE CERTIFICATE") signed by of a Financial Officer of the Borrower, substantially in the form attached hereto as of Exhibit “E” and made a part hereofD, (i) certifying as to whether a Default has occurred and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof, 8.16 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.4 hereof and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors as of the date of such Compliance Certificate;
(dD) concurrently with any delivery of financial statements under subsections subsection (a) or (b) above, a report of sales backlogs for major product lines as certificate of the end Accountants stating whether they obtained knowledge during the course of their examination of such financial statements of any Default in the relevant quarterly covenants contained in Section 8.16 (which certificate may be limited to the extent required by accounting rules or annual periodguidelines);
(E) concurrently with any delivery of financial statements under subsection (a) above, a certificate executed by a Financial Officer and the general counsel of the Borrower (i) setting forth the information required pursuant to Section 2 of the Perfection Certificate or confirming that there has been no change in such information since the date of such certificate or the date of the most recent certificate delivered pursuant to this subsection (e), (ii) certifying that all Uniform Commercial Code financing statements or other appropriate filings, recordings or registrations, including all refilings, rerecordings and re-registrations, containing a description of the Collateral have been filed of record in each governmental, municipal or other appropriate office in each jurisdiction identified pursuant to clause (i) above to the extent necessary to protect and perfect the security interest of the Administrative Agent for a period of not less than 18 months after the date of such certificate (except as noted therein with respect to any continuation statements to be filed within such period) and (iii) identifying in the format of Schedules 5, 6 and 8, as applicable, Equity Interests (as defined in the Security Agreement), Instruments (as defined in the Security Agreement) and Intellectual Property of the Borrower and each Subsidiary Guarantor in existence on the date thereof and not then listed on such Schedules or previously so identified to the Administrative Agent;
(F) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(G) not later than the 25th day of each month (or if such day is not a Business Day, on the immediately preceding Business Day, a Borrowing Base Certificate, signed by a Financial Officer of the Borrower, calculated as of the last day of the preceding month;
(H) concurrently with the delivery of the Borrowing Base Certificate pursuant to subsection (g) above, the following information as of the end of the month for which such Borrowing Base Certificate is delivered, for each of the Borrower and each Subsidiary or on a combined basis and in a format acceptable to the Agents: (i) summary of the aging of all accounts receivables, and (ii) a list of accounts payable and inventory (raw material, work in process and finished goods); and
(fI) promptly following any request therefor, such other information regarding the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Lender any Credit Party may reasonably request.
Appears in 1 contract
Financial Statements and Information. The Borrower shall Maintain, and cause each of its Subsidiaries to maintain, a standard system of accounting in accordance with GAAP, and furnish or cause to be furnished to the Administrative Agent and each Lender:
(a) As soon as available, but in any event within 90 95 days after the end of each fiscal year:
(i) , a copy of the Consolidated Balance Sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, together with the related Consolidated Statement of Operations, Stockholders' Equity and Cash Flow as of and through the end of such fiscal year, setting forth in each case in comparative form the figures for the preceding fiscal year. The Consolidated Balance Sheet and Consolidated Statement of Operations, Stockholders' Equity and Cash Flow shall be audited and certified without qualification by the Accountants, which certification shall (i) state that the examination by such Accountants in connection with such Consolidated financial statements has been made in accordance with generally accepted auditing standards and, accordingly, included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances, and (ii) include the opinion of such Accountants that such Consolidated financial statements have been prepared in accordance with GAAP in a manner consistent with prior fiscal periods, except as otherwise specified in such opinion. Notwithstanding any of the foregoing, the Borrower may satisfy its obligation to furnish its Consolidated Balance Sheet and Consolidated Statement of Operations, Stockholders' Equity and Cash Flow by furnishing copies of the Borrower’s Annual Report 's annual report on Form 10-K in respect of such fiscal year, together with the financial statements required to be attached theretothereto or incorporated by reference therein, which statements above shall be audited and reported on by the Accountants (without (x) a “going concern” or like qualification or exception, (y) any qualification or exception as to the scope of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause provided the Borrower is required to be in default of any of its obligations under Section 7.14 hereof (each, an “Impermissible Qualification”)) to file such annual report on Form 10-K with the effect that SEC and such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; and
(ii) a copy of its unaudited consolidating balance sheet and related unaudited statements of income, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial conditions and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;filing is actually made.
(b) As soon as available, but in any event within 45 50 days after the end of each of the first three fiscal quarters of each fiscal year:
(i) , a copy of the Consolidated Balance Sheet of the Borrower and its Subsidiaries as at the end of each such quarterly period, together with the related Consolidated Statement of Operations and Cash Flows for such period and for the elapsed portion of the fiscal year through such date, setting forth in each case in comparative form the figures for the corresponding periods of the preceding fiscal year, certified by a Financial Officer of the Borrower as presenting fairly the Consolidated financial condition and the Consolidated results of operations of the Borrower and its Subsidiaries in accordance with GAAP. Notwithstanding any of the foregoing, the Borrower may satisfy its obligation to furnish its quarterly Consolidated Balance Sheet and Consolidated Statement of Operations and Cash Flow by furnishing copies of the Borrower’s Quarterly Report 's quarterly report on Form 10-Q in respect of such fiscal quarter, together with the financial statements required to be attached thereto; andthereto or incorporated by reference therein, provided the Borrower is required to file such quarterly report on Form 10-Q with the SEC and such filing is actually made.
(iic) Within 50 days after the end of each of the first three fiscal quarters (95 days after the end of the last fiscal quarter), a Compliance Certificate, certified by a Financial Officer of the Borrower.
(d) Within 30 days after the end of each fiscal month, a copy of the Consolidated Balance Sheet of the Borrower and its unaudited consolidating balance sheet and related unaudited statements of income and cash flows Subsidiaries as of at the end of each such fiscal month, together with the related Consolidated Statement of Operations and Cash Flows (including, without limitation, line items for Capital Expenditures and payments made to any Parent or any Affiliate of the Borrower) for such period and for such fiscal quarter and the then elapsed portion of the fiscal year through such fiscal yeardate, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous preceding fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly in all material respects the Consolidated financial condition and the Consolidated results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income and cash flows with respect to all Domestic Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(c) concurrently with any delivery of financial statements under subsections (a) or (b) above, a certificate (a “Compliance Certificate”) signed by a Financial Officer of the Borrower, substantially in the form attached hereto as Exhibit “E” and made a part hereof, (i) certifying as to whether a Default has occurred and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof, (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.4 hereof and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors as of the date of such Compliance Certificate;
(d) concurrently with any delivery of financial statements under subsections (a) or (b) above, a report of sales backlogs for major product lines as of the end of the relevant quarterly or annual period;GAAP.
(e) promptly Within 30 days after the same become publicly availableend of each fiscal month, copies of all periodic a report detailing asbestos claims, asbestos settlements, asbestos judgments and other reportsasbestos legal fees, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the in each case may be; andfor such fiscal month period.
(f) promptly following any request therefor, such Such other information regarding as the Borrower Administrative Agent or any Subsidiary, or compliance with the terms of this Agreement, as the Lender may reasonably requestrequest from time to time.
Appears in 1 contract
Samples: Credit Agreement (Building Materials Investment Corp)
Financial Statements and Information. The Borrower shall furnish or cause to be furnished to the Lender:
(a) within 90 days after the end of each fiscal year:
(i) a copy of the Borrower’s 's Annual Report on Form 10-K in respect of such fiscal year, together with the financial statements required to be attached thereto, which statements above shall be audited and reported on by the Accountants (without (x) a “"going concern” " or like qualification or exception, (y) any qualification or exception as to the scope of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.14 hereof (each, an “"Impermissible Qualification”")) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; and
(ii) a copy of its unaudited consolidating balance sheet and related unaudited statements of income, stockholders’ ' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial conditions and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year:
(i) a copy of the Borrower’s 's Quarterly Report on Form 10-Q in respect of such fiscal quarter, together with the financial statements required to be attached thereto; and
(ii) a copy of its unaudited consolidating balance sheet and related unaudited statements of income income, and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income and cash flows with respect to all Domestic Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(c) concurrently with any delivery of financial statements under subsections (a) or (b) above, a certificate (a “"Compliance Certificate”") signed by a Financial Officer of the Borrower, substantially in the form attached hereto as of Exhibit “E” and made a part hereofD, (i) certifying as to whether a Default has occurred and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof7.14, (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.4 hereof and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors as of the date of such Compliance Certificate, (v) either a certification that there has been no change to the information disclosed in the Schedules to the Security Agreement or, after the delivery of the first certification delivered pursuant to this subsection, as previously certified, or, if so, specifying all such changes, and certifying that all agreements, instruments, and other documents have been executed and delivered, and all further action (including the filing and recording of financing statements and other documents) has been taken, that may be necessary to cause the Collateral to become subject to a perfected Lien of the Lender under the applicable Loan Documents, with the priority required thereby;
(d) concurrently with any delivery of financial statements under subsections (a) or (b) above, a report of sales backlogs for major product lines as of the end of the relevant quarterly or annual period;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(f) promptly following any request therefor, such other information regarding the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Lender may reasonably request.
Appears in 1 contract
Financial Statements and Information. The Borrower shall furnish or cause to be furnished to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year:
(i) , a copy of an audited consolidated balance sheet of the Borrower’s Annual Report on Form 10-K in respect Borrower and Subsidiaries as of the end of such fiscal year, together with and the financial statements required to be attached thereto, which statements above shall be audited and reported on by the Accountants (without (x) a “going concern” or like qualification or exception, (y) any qualification or exception as to the scope of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.14 hereof (each, an “Impermissible Qualification”)) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; and
(ii) a copy of its unaudited consolidating balance sheet and related unaudited statements of income, stockholders’ cash flows, capitalization and shareholders' equity and cash flows as of the end of and for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all accompanied by a report of a firm of independent certified public accountants of nationally recognized standing without a "going concern" or like qualification or exception or any qualification or exception as to the scope of such audit; provided, however, that the Borrower may satisfy this requirement by one delivering to the Administrative Agent and each Lender, within five days after the date of filing with the SEC, a copy of its Financial Officers Annual Report on Form 10-K as presenting fairly in all material respects filed with the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject SEC pursuant to the absence of footnotesSecurities Exchange Act, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited any financial statements of incomeincorporated therein by reference, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects if the financial conditions and results statements included or incorporated by reference therein would otherwise satisfy the requirements of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;this subsection.
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year:
(i) , a copy of a consolidated balance sheet of the Borrower’s Quarterly Report on Form 10-Q in respect Borrower and Subsidiaries as of the end of such fiscal quarter, together with and the financial statements required to be attached thereto; and
(ii) a copy of its unaudited consolidating balance sheet and related unaudited consolidated statements of income and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of such the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; provided, together however, that the Borrower may satisfy this requirement by delivering to the Administrative Agent and each Lender, within five days after the date of filing with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identifiedthe SEC, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income and cash flows with respect to all Domestic Subsidiaries as of the end of and its Quarterly Report on Form 10-Q for such fiscal quarter and as filed with the then elapsed portion of such fiscal year, setting forth in each case in comparative form SEC pursuant to the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;Securities Exchange Act.
(c) concurrently with any delivery of financial statements under subsections (a) or (b) above, a certificate (a “Compliance Certificate”COMPLIANCE CERTIFICATE) signed by of a Financial Officer of the Borrower, substantially in the form attached hereto as Exhibit “E” and made a part hereof, (i) certifying as to whether a Default has occurred and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof, (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.4 hereof and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors as of the date of such Compliance Certificate;8.3.
(d) concurrently with any delivery of financial statements under subsections (a) or (b) above, a report of sales backlogs for major product lines as of the end of the relevant quarterly or annual period;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC Securities and Exchange Commission or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(fe) promptly following any request therefor, such other information regarding the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Information. The So long as any of the ------------------------------------ Obligations shall be outstanding, Borrower shall will furnish or cause to be furnished to the Agent (with sufficient copies for each Lender:):
(aA) as soon as available and in any event within 45 days after the end of each fiscal quarter, copies of the consolidated and consolidating balance sheets of Borrower and its Subsidiaries as of the end of such fiscal quarter, and of the related consolidated and consolidating statements of operations, earnings and cash flows for such fiscal quarter and for the portion of the fiscal year of Borrower ended with the last day of such fiscal quarter, all in reasonable detail and stating in comparative form (i) the consolidated and consolidating figures as of the end of and for the corresponding date and period in the previous fiscal year and (ii) the corresponding figures from the consolidated budget of Borrower and its Subsidiaries for such period, all such statements being Certified by the chief financial officer of Borrower;
(B) as soon as available and in any event within 90 days after the end of each fiscal year:
(i) a copy year of Borrower, copies of the Borrower’s Annual Report on Form 10-K in respect audited consolidated and consolidating balance sheets of Borrower and its Subsidiaries as of the end of such fiscal year, and of the related audited consolidated and consolidating statements of operations, earnings and cash flows for such fiscal year, together with the financial statements required to be attached notes thereto, which statements above shall be all in reasonable detail and stating in comparative form (i) the respective audited consolidated and reported on by consolidating figures as of the Accountants end of and for the previous fiscal year and (without ii) the corresponding figures from the consolidated budget of Borrower and its Subsidiaries for such fiscal year, (x) in the case of such audited consolidated financial statements, accompanied by a “going concern” report thereon of Xxxxxx Xxxxxxxx, LLP, or like qualification or exceptionother independent public accountants selected by Borrower and acceptable to Agent (the "Accountants"), (y) any qualification or exception which report ----------- shall be accompanied by a loan compliance letter addressed to Agent and unqualified as to the going concern and scope of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.14 hereof (each, an “Impermissible Qualification”)) to the effect shall state that such consolidated financial statements present fairly in all material respects the consolidated financial condition and results position of operations of the Borrower and its Subsidiaries as at the end of such fiscal year and the consolidated Subsidiaries results of their operations and cash flows for such fiscal year in conformity with GAAP applied on a basis consistent with prior years and that the examination by the Accountants in connection with such consolidated basis financial statements has been made in accordance with GAAP consistently applied; and
generally accepted auditing standards, and (iiy) a copy in the case of its unaudited consolidating balance sheet and related unaudited statements of income, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identifiedfinancial statements, in accordance with GAAP consistently applied; and
(iii) a copy Certified by the chief financial officer of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial conditions and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(bC) within 45 days after the end of each fiscal quarter of Borrower, an Officer's Certificate of Borrower (1) setting forth calculations in reasonable detail demonstrating whether or not as at the first three fiscal quarters of each fiscal year:
(i) a copy of the Borrower’s Quarterly Report on Form 10-Q in respect end of such fiscal quarterquarter Borrower was in compliance with Sections 7.7, together with 7.8 and 7.16 of this -------------------------- Agreement and (2) stating that, based upon such examination or investigation and review of this Agreement and other Loan Documents as in the financial statements required to be attached thereto; and
(ii) a copy of its unaudited consolidating balance sheet and related unaudited statements of income and cash flows as opinion of the end of and for such fiscal quarter and signer is necessary to enable the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject signer to normal year-end audit adjustments and the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income and cash flows with respect to all Domestic Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(c) concurrently with any delivery of financial statements under subsections (a) or (b) above, a certificate (a “Compliance Certificate”) signed by a Financial Officer of the Borrower, substantially in the form attached hereto as Exhibit “E” and made a part hereof, (i) certifying as to whether a Default has occurred and, if so, specifying the details thereof and any action taken or proposed to be taken express an informed opinion with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof, (iii) stating whether any change in GAAP or no default by Borrower and its Subsidiaries in the application thereof has occurred since the date fulfillment of any of the audited financial statements referred to in Section 4.4 hereof andterms, covenants, provisions or conditions of this Agreement or any of the Loan Documents exists or has existed during such period or, if any such change a default shall exist or have existed, the nature and period of existence thereof and what action Borrower (or the applicable Subsidiary) has occurredtaken, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors as of the date of such Compliance Certificateis taking or proposes to take with respect thereto;
(d) concurrently with any delivery of financial statements under subsections (a) or (b) above, a report of sales backlogs for major product lines as of the end of the relevant quarterly or annual period;
(eD) promptly after the same become publicly availableare available and in any event within 10 days of filing, copies of all periodic such proxy statements, financial statements, notices and other reports, proxy statements and other materials filed by the reports as Borrower or any Subsidiary shall send or make available generally to any of its securityholders, and copies of all regular and periodic reports (including without limitation annual reports on Form 10-K and quarterly reports on Form 10-Q), all reports on Form 8-K and all registration statements which Borrower or any Subsidiary may file with the SEC or with any national securities exchange;
(E) Within 20 days after the last Business Day of each calendar month, Borrower shall deliver to Agent and each Lender (i) a certificate in the form of Exhibit E hereto ("Borrowing Base Certificate") showing the Borrowing --------- -------------------------- Base as of the close of business on the last Business Day of the immediately preceding calendar month, (ii) an aged trial balance of all Accounts of Borrower and its Subsidiaries as of such date ("Accounts Trial Balance"), indicating ---------------------- which Accounts are current, up to 90 days, and more than 90 days past the invoice date, (iii) an Inventory analysis (including raw materials, work in progress and finished Inventory), and (iv) an accounts payable aging, in each case certified as complete and correct on behalf of Borrower by an authorized officer of Borrower;
(F) at any time when an Event of Default shall have occurred and be continuing, upon the request of Agent, Borrower shall provide Agent with a Borrowing Base Certificate with such frequency as Agent shall specify. Upon request by Agent, Borrower shall furnish copies of any other material reports, documents or distributed information, in a form and with such specificity as is reasonably satisfactory to Agent (to the extent such reports, documents and information can be produced or furnished without unreasonable cost), concerning Accounts and Inventory included, described or referred to in such Borrowing Base Certificates, including without limitation, copies of all invoices prepared in connection with such Accounts;
(G) promptly after the receipt thereof by Borrower and in any event within 3 Business Days thereof, copies of any reports as to material inadequacies in accounting controls (including reports as to the absence of any such inadequacies) submitted to Borrower by the Borrower to its shareholders generally, as Accountants in connection with any audit of such corporation made by the case may be; andAccountants;
(fH) promptly following (and in any request thereforevent within 3 Business Days) after becoming aware of (1) the existence of any Default or Event of Default on the part of Borrower, such other information regarding an officer's certificate of Borrower specifying the nature and period of existence thereof and what action Borrower is taking or any Subsidiary, or compliance proposes to take with the terms of this Agreement, as the Lender may reasonably request.respect thereto; or
Appears in 1 contract
Samples: Loan Agreement (Summa Industries)
Financial Statements and Information. The Borrower shall furnish Furnish or cause to be furnished to Lender a copy of each of the Lenderfollowing within the times indicated:
(a) within 90 as soon as available and in any event no later than ninety (90) days after the end of each fiscal year:year of Borrower, (i) annual audited consolidated financial statements for Borrower, and all notes thereto, including a balance sheet and statements of income, retained earnings and cash flows for such fiscal year and the immediately preceding fiscal year in comparative form, all prepared in conformity with GAAP on a consolidated basis and accompanied by a report and opinion of Ernst & Young LLP or other firm of independent certified public accountants satisfactory to Lender stating that such accountants have conducted audits of such financial statements in accordance with generally accepted auditing standards and that, in their opinion, such financial statements present fairly, in all material respects, Borrower's financial position as of their date and the results of Borrower's operations and cash flows for the period they covered in conformity with GAAP, (ii) copies of the internally prepared consolidating balance sheets and statements of income of Borrower and its Subsidiaries utilized in the preparation of the consolidated financial statements of Borrower furnished to Lender pursuant to clause CREDIT AGREEMENT - TYLER TECHNOLOGIES, INC. PAGE 28
(i) a copy preceding and certified on behalf of the Borrower’s Annual Report on Form 10-K in respect of such fiscal yearBorrower by an appropriate officer or other responsible party acceptable to Lender, together with the financial statements required to be attached thereto, which statements above shall be audited and reported on by the Accountants (without (x) a “going concern” or like qualification or exception, (y) any qualification or exception as to the scope of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause the Borrower to be in default of any of its obligations under Section 7.14 hereof (each, an “Impermissible Qualification”)) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; and
(ii) a copy of its unaudited consolidating balance sheet and related unaudited statements of income, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy Compliance Certificate substantially in the form of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial conditions and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently appliedExhibit D;
(b) as soon as available and in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year:
year of Borrower, (i) ), unaudited consolidated financial statements for Borrower, including a copy of balance sheet as at the Borrower’s Quarterly Report on Form 10-Q in respect close of such fiscal quarter and an income statement and statement of cash flows for such quarter, together all prepared in accordance with the financial statements required GAAP on a consolidated basis and certified on behalf of Borrower by an appropriate officer or other responsible party acceptable to be attached thereto; and
Lender, and (ii) a copy of its unaudited consolidating balance sheet and related unaudited statements of income and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, Compliance Certificate substantially in the case form of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income and cash flows with respect to all Domestic Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently appliedExhibit D;
(c) concurrently with as soon as available and in any delivery event within 30 calendar days after the end of financial statements under subsections each calendar month: (ai) or (b) above, a certificate (a “Compliance Certificate”) signed by a Financial Officer of the Borrower, Borrowing Base Report and supporting exhibits substantially in the form attached hereto as of Exhibit “E” and made a part hereof, (i) certifying as to whether a Default has occurred and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof, (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.4 hereof and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors as of the date of such Compliance Certificate;
(d) concurrently with any delivery of financial statements under subsections (a) or (b) above, a report of sales backlogs for major product lines A dated as of the end of the relevant quarterly preceding month; and (ii) a complete aging of all accounts receivable by Borrower;
(d) promptly following the discovery thereof, information in reasonable detail correcting any information provided to Lender in reliance upon information from a customer of Borrower which Borrower discovers to be inaccurate or annual periodmisleading in any material respect;
(e) promptly after upon the same become publicly availablefiling thereof, copies of all periodic registration statements, and annual, quarterly, monthly or other reports, proxy statements and other materials regular reports filed by the or on behalf of Borrower or any Subsidiary of its Subsidiaries with the SEC or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may beSecurities and Exchange Commission; and
(f) promptly following any request therefor, such other information regarding the Borrower relating to Borrower's or any Subsidiary, or compliance with the terms of this Agreement, 's financial condition and affairs as the Lender may from time to time reasonably requestrequests or as may be required from time to time by any Loan Document.
Appears in 1 contract
Financial Statements and Information. The Borrower shall Maintain, and cause each of its Subsidiaries to maintain, a standard system of accounting in accordance with GAAP, and furnish or cause to be furnished to the Administrative Agent and each Lender:
(a) As soon as available, but in any event within 90 95 days after the end of each fiscal year:
(i) , a copy of the Consolidated Balance Sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, together with the related Consolidated Statement of Operations, Stockholders’ Equity and Cash Flow as of and through the end of such fiscal year, setting forth in each case in comparative form the figures for the preceding fiscal year. The Consolidated Balance Sheet and Consolidated Statement of Operations, Stockholders’ Equity and Cash Flow shall be audited and certified without qualification by the Accountants, which certification shall (i) state that the examination by such Accountants in connection with such Consolidated financial statements has been made in accordance with generally accepted auditing standards and, accordingly, included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances, and (ii) include the opinion of such Accountants that such Consolidated financial statements have been prepared in accordance with GAAP in a manner consistent with prior fiscal periods, except as otherwise specified in such opinion. Notwithstanding any of the foregoing, the Borrower may satisfy its obligation to furnish its Consolidated Balance Sheet and Consolidated Statement of Operations, Stockholders’ Equity and Cash Flow by furnishing copies of the Borrower’s Annual Report annual report on Form 10-K in respect of such fiscal year, together with the financial statements required to be attached theretothereto or incorporated by reference therein, which statements above shall be audited and reported on by the Accountants (without (x) a “going concern” or like qualification or exception, (y) any qualification or exception as to the scope of such audit or (z) any exception or qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause provided the Borrower is required to be in default of any of its obligations under Section 7.14 hereof (each, an “Impermissible Qualification”)) to file such annual report on Form 10-K with the effect that SEC and such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; and
(ii) a copy of its unaudited consolidating balance sheet and related unaudited statements of income, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income, stockholders equity and cash flows with respect to all Domestic Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial conditions and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;filing is actually made.
(b) As soon as available, but in any event within 45 50 days after the end of each of the first three fiscal quarters of each fiscal year:
(i) , a copy of the Consolidated Balance Sheet of the Borrower and its Subsidiaries as at the end of each such quarterly period, together with the related Consolidated Statement of Operations and Cash Flows for such period and for the elapsed portion of the fiscal year through such date, setting forth in each case in comparative form the figures for the corresponding periods of the preceding fiscal year, certified by a Financial Officer of the Borrower as presenting fairly the Consolidated financial condition and the Consolidated results of operations of the Borrower and its Subsidiaries in accordance with GAAP. Notwithstanding any of the foregoing, the Borrower may satisfy its obligation to furnish its quarterly Consolidated Balance Sheet and Consolidated Statement of Operations and Cash Flow by furnishing copies of the Borrower’s Quarterly Report quarterly report on Form 10-Q in respect of such fiscal quarter, together with the financial statements required to be attached thereto; andthereto or incorporated by reference therein, provided the Borrower is required to file such quarterly report on Form 10-Q with the SEC and such filing is actually made.
(iic) Within 50 days after the end of each of the first three fiscal quarters (95 days after the end of the last fiscal quarter), a Compliance Certificate, certified by a Financial Officer of the Borrower.
(d) Within 30 days after the end of each fiscal month, a copy of the Consolidated Balance Sheet of the Borrower and its unaudited consolidating balance sheet and related unaudited statements of income and cash flows Subsidiaries as of at the end of each such fiscal month, together with the related Consolidated Statement of Operations and Cash Flows (including, without limitation, line items for Capital Expenditures and payments made to any Parent or any Affiliate of the Borrower) for such period and for such fiscal quarter and the then elapsed portion of the fiscal year through such fiscal yeardate, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous preceding fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly in all material respects the Consolidated financial condition and the Consolidated results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, together with a schedule of other financial information consisting of consolidating or combining details in columnar form with such consolidating Subsidiaries separately identified, in accordance with GAAP consistently applied; and
(iii) a copy of the unaudited combined balance sheet and related unaudited statements of income and cash flows with respect to all Domestic Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of the Borrower’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of said Domestic Subsidiaries on a combining basis in accordance with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotes, together with a schedule of other financial information consisting of combined and combining details in columnar form with said Domestic Subsidiaries separately identified, all in accordance with GAAP consistently applied;
(c) concurrently with any delivery of financial statements under subsections (a) or (b) above, a certificate (a “Compliance Certificate”) signed by a Financial Officer of the Borrower, substantially in the form attached hereto as Exhibit “E” and made a part hereof, (i) certifying as to whether a Default has occurred and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.14 hereof, (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.4 hereof and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, and (iv) listing the Subsidiary Guarantors as of the date of such Compliance Certificate;
(d) concurrently with any delivery of financial statements under subsections (a) or (b) above, a report of sales backlogs for major product lines as of the end of the relevant quarterly or annual period;GAAP.
(e) promptly Within 30 days after the same become publicly availableend of each fiscal month, copies a report detailing asbestos claims, asbestos settlements, asbestos judgments and asbestos legal fees, in each case for such fiscal month period and for the elapsed portion of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the SEC or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; andfiscal year through such fiscal month period.
(f) promptly following any request therefor, such Such other information regarding as the Borrower Administrative Agent or any Subsidiary, or compliance with the terms of this Agreement, as the Lender may reasonably requestrequest from time to time.
Appears in 1 contract
Samples: Credit Agreement (Building Materials Investment Corp)
