Financial Statements and Notices. Borrower will furnish to Agent and each Bank: (i) within thirty (30) days after the close of each calendar month in each fiscal year, copies of the consolidated and, to the extent prepared, consolidating financial statements for such calendar month for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of income and retained earnings (such income statements to include a comparison between projected income for each location at which Borrower and its Subsidiaries conduct business as set forth in the annual financial projections provided under CLAUSE (v) and actual performance for each location at which Borrower and its Subsidiaries conduct business); and (B) balance sheets as of the end of such monthly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustment); (ii) within forty-five (45) days after the close of each fiscal quarter in each fiscal year, copies of the consolidated and, to the extent prepared, consolidating financial statements for such fiscal quarter for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of such quarterly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustment); (iii) within ninety (90) days after the close of each fiscal year, a copy of the consolidated and, to the extent prepared, consolidating financial statements for Borrower and its Subsidiaries for such fiscal year, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of such fiscal year; such financial statements to be audited by independent certified public accountant acceptable to the Required Banks, to contain the unqualified opinion of such accountants that such statements have been presented fairly in all material respects in accordance with GAAP, together with a certificate of such accounting firm to the Agent and the Banks: (1) stating that in the course of the regular examination of the business of Borrower and the Subsidiaries, which examination was conducted by such accounting firm in accordance with GAAP, nothing has come to the attention of such accounting firm which would cause them to believe that a Default or Event of Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default or an Event of Default has occurred and is continuing, a statement as to the nature thereof, (2) setting forth in reasonable detail the calculations made during such period and as of the end of such period in determining compliance with the financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND (3) stating that Agent and the Banks may rely thereon; (iv) contemporaneously with each monthly, quarterly and year-end financial report required by the foregoing CLAUSES (i), (ii) AND (iii), a certificate of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Parent stating that he or she has individually reviewed the provisions of this Agreement and that a review of the activities of Parent and the Subsidiaries during such monthly, quarterly and yearly period, as the case may be, has been made by him or her or under his or her supervision, with a view to determining whether Parent has fulfilled all its obligations under this Agreement, and that Parent has observed and performed each undertaking contained in this Agreement and is not in default in the observance or performance of any of the provisions hereof or, if Parent shall be so in default, specifying all such defaults and events of which he may have knowledge; (v) within ninety (90) days after the close of each fiscal year, a projection and estimate (to the best of Borrower's ability at the time made) of the financial position and the results for, and as of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower and its Subsidiaries, on a consolidated and, to the extent prepared, consolidating basis, prepared by Borrower, such projections to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of each such annual period, all in reasonable detail certified by Borrower's chief financial officer or vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein; (vi) promptly after they are sent, made available or filed, copies of all reports, proxy statements and financial statements that Borrower sends or makes available to its stockholders and, concurrently with filing, copies of all registration statements and reports that Borrower files with the Securities and Exchange Commission, including, but not limited to, 10Q, 10K and 8K reports, or with any other Governmental Authority where such registration statements and reports may be filed; (vii) as soon as possible, and in any event within five (5) days after a Responsible Officer of Borrower has knowledge of (A) the occurrence of a Default or an Event of Default, or (B) any default or event of default as defined in any other evidence of Debt or under any other agreement, indenture or other instrument under which such Debt has been issued, whether or not such Debt is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) and such Event of Default, Default or such other default or event of default is not waived on or before two (2) Business Days after it occurs, the statement of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details of such default or event of default, or Default or Event of Default (and if an event under subclause (B) above, a copy of any notice received from the issuer or holder of such Debt) and the action which Borrower proposes to take with respect thereto; (viii) simultaneously with the delivery of the financial statements under SUBPARAGRAPH 5.01(c)(ii) above, a certificate from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower (A) demonstrating compliance with the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and other accounts receivable and a listing and aging of all accounts payable; (ix) as soon as available, the annual written report of auditors pertaining to Borrower's and each of its Subsidiaries' internal controls submitted to Borrower by Borrower's independent public accountants in connection with each annual audit made by such accountants; (x) within thirty (30) days after the close of each fiscal quarter in each fiscal year, a Borrowing Base Certificate of Borrower, appropriately completed by the chief financial officer or the vice president and treasurer of Borrower; (xi) without duplication of CLAUSE (vii) above, upon delivery thereof pursuant to the Subordinated Lender Documents or the Note Purchase Documents, a copy of any notice given to any Subordinated Lender, Note Purchaser or the Trustee by Borrower or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, a request for payment pursuant to Article 13 of the Indenture; (xii) prompt written notice of any condition or event which has resulted or might result in (A) a Material Adverse Effect, or (B) a breach of, or noncompliance with, any term, condition or covenant contained herein, or (C) a material breach of, or noncompliance with, any term, condition or covenant of any contract to which Borrower or any Subsidiary is a party or by which it or its property may be bound which contract is material to Borrower and the Subsidiaries as a whole; (xiii) prompt written notice of any actual or threatened claims, litigation, suits, proceedings or disputes (whether or not purportedly on behalf of Borrower) against or affecting Borrower or any Subsidiary or any of their property which, if adversely determined, would have a Material Adverse Effect (including, without in any way limiting the foregoing, claims, litigation, suits, proceedings or disputes involving monetary amounts in excess of One Million Dollars ($1,000,000) not covered by insurance or self-insurance), or any material labor controversy resulting in or threatening to result in a strike against Borrower or any Subsidiary, or any proposal by any Governmental Authority to acquire any of the material assets or business of Borrower or any Subsidiary, if such strike or acquisition would have a Material Adverse Effect; (xiv) thirty (30) days' prior written notice of any change in the legal name of Borrower; (xv) concurrently with filing, copies of IRS Form 5500 filed annually with respect to each Plan of Borrower or any Subsidiary required to file such form, and, promptly after receipt thereof, copies of any notice Borrower or any member of the Controlled Group may receive from the PBGC or the Internal Revenue Service with respect to any Plan; PROVIDED, HOWEVER, that this CLAUSE (xv) shall not apply to notices of general application promulgated by the Department of Labor; (xvi) as soon as possible, and in any event within thirty (30) days after Borrower or any Subsidiary knows or has reason to know that (A) any Reportable Event has occurred with respect to any Plan, (B) Borrower or any Subsidiary has become obligated to contribute to any Multiemployer Plan; or (C) Borrower or any member of the Controlled Group has incurred withdrawal liability with respect to any Multiemployer Plan, a statement from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details as to such event and the action which Borrower or the affected Subsidiary proposes to take with respect thereto, together with a copy of the notice of any Reportable Event as described in (A) above as given to the PBGC if a copy of such notice is available to Borrower or the affected Subsidiary; (xvii) within twenty (20) days of Agent's or any Bank's request therefor: (A) a current list of the names, addresses and outstanding debts of all Account Debtors, and (B) a current list of the names, addresses and outstanding amounts due all creditors of Borrower or any Subsidiary; (xviii) within (10) days after Agent's or any Bank's request therefor, copies of federal income tax returns filed by Borrower and its Subsidiaries; (xix) thirty (30) days prior to any change in the location of any of Borrower's places of business or of the establishment of any new, or the discontinuance of any existing place of business, written notice of such change, establishment or discontinuance; and (xx) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Borrower or Borrower's Subsidiaries, and compliance by Borrower with the terms of this Agreement and the other Credit Documents, as Agent or any Bank may from time to time reasonably request.
Appears in 2 contracts
Samples: Credit Agreement (BMC West Corp), Credit Agreement (Building Materials Holding Corp)
Financial Statements and Notices. Borrower will Except during such periods as the Company has timely filed its annual and quarterly reports with the Securities and Exchange Commission (whether as a voluntary filer, within such time periods specified in the Exchange Act for non-accelerated filers, or, if the Company should become obligated to file such reports pursuant to Sections 13 or 15(d) of the Exchange Act, in accordance with the applicable filing requirements), at the request of any Holder or Legacy Stockholder, the Company shall furnish to Agent and each Banksuch Person:
(i) within thirty (30A) As soon as available, but in no event later than 45 days after the close of each calendar month in each fiscal year, copies of the consolidated and, to the extent prepared, consolidating financial statements for such calendar month for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of income and retained earnings (such income statements to include a comparison between projected income for each location at which Borrower and its Subsidiaries conduct business as set forth in the annual financial projections provided under CLAUSE (v) and actual performance for each location at which Borrower and its Subsidiaries conduct business); and (B) balance sheets as of the end of such monthly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustment);
(ii) within forty-five (45) days after the close of each fiscal quarter in each fiscal year, copies of the consolidated and, to the extent prepared, consolidating financial statements for such fiscal quarter for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of such quarterly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustment);
(iii) within ninety (90) days after the close of each fiscal year, a copy unaudited summarized consolidated financial statements of the consolidated and, to the extent prepared, consolidating financial statements for Borrower Company and its Subsidiaries Subsidiaries, for such the immediately preceding fiscal year, and (B) as soon as available, but in no event later than 90 days after the end of each to include: fiscal year, audited consolidated financial statements of the Company and its Subsidiaries, in each of clauses (A) statements of cash flows; and (B) statements of income and retained earnings; and (C) including a summarized consolidated balance sheets sheet as of the end of such fiscal year; , a summarized consolidated statement of income and a summarized consolidated statement of cash flows for such financial statements to be year, in each case setting forth in comparative form the figures from the Company’s previous fiscal year, prepared on an internal management basis in the case of clause (A) and prepared in accordance with U.S. generally accepted accounting principles consistently applied in the case of clause (B) and, in the case of clause (B), audited by a nationally recognized independent certified public accountant acceptable to the Required Banks, to contain the unqualified opinion of such accountants that such statements have been presented fairly in all material respects in accordance with GAAP, together with a certificate of such accounting firm to selected by the Agent Board. Audited financial statements shall also be accompanied by a narrative discussion in writing comparing the results of operations of the current fiscal year and the Banks:previous fiscal year, which discussion shall be prepared by the Company’s management; and
(1ii) stating that As soon as available, but in no event later than 45 days after the course end of each fiscal quarter, unaudited summarized consolidated financial statements of the regular examination of the business of Borrower Company and the its Subsidiaries, which examination was conducted by such accounting firm in accordance with GAAP, nothing has come to the attention of such accounting firm which would cause them to believe that including a Default or Event of Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default or an Event of Default has occurred and is continuing, a statement as to the nature thereof, (2) setting forth in reasonable detail the calculations made during such period and summarized consolidated balance sheet as of the end of such period in determining compliance with the financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND (3) stating that Agent and the Banks may rely thereon;
(iv) contemporaneously with each monthly, quarterly and year-end financial report required by the foregoing CLAUSES (i), (ii) AND (iii)fiscal quarter, a certificate of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Parent stating that he or she has individually reviewed the provisions of this Agreement and that a review of the activities of Parent and the Subsidiaries during such monthly, quarterly and yearly period, as the case may be, has been made by him or her or under his or her supervision, with a view to determining whether Parent has fulfilled all its obligations under this Agreement, and that Parent has observed and performed each undertaking contained in this Agreement and is not in default in the observance or performance of any of the provisions hereof or, if Parent shall be so in default, specifying all such defaults and events of which he may have knowledge;
(v) within ninety (90) days after the close of each fiscal year, a projection and estimate (to the best of Borrower's ability at the time made) of the financial position and the results for, and as of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower and its Subsidiaries, on a summarized consolidated and, to the extent prepared, consolidating basis, prepared by Borrower, such projections to include: (A) statements of cash flows; (B) statements statement of income and retained earnings; a summarized consolidated statement of cash flows for such quarter and (C) balance sheets as the current fiscal year to date, in each case setting forth in comparative form the figures from the corresponding periods of the end of each such annual period, all in reasonable detail certified by Borrower's chief financial officer or vice president previous fiscal year and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein;
(vi) promptly after they are sent, made available or filed, copies of all reports, proxy statements and Company’s projected financial statements that Borrower sends or makes available to its stockholders and, concurrently with filing, copies of all registration statements for the current fiscal year and reports that Borrower files with the Securities and Exchange Commission, including, but not limited to, 10Q, 10K and 8K reports, or with any other Governmental Authority where such registration statements and reports may be filed;
(vii) as soon as possible, and in any event within five (5) days after a Responsible Officer of Borrower has knowledge of (A) the occurrence of a Default or an Event of Default, or (B) any default or event of default as defined in any other evidence of Debt or under any other agreement, indenture or other instrument under which such Debt has been issued, whether or not such Debt is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) and such Event of Default, Default or such other default or event of default is not waived on or before two (2) Business Days after it occurs, the statement of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details of such default or event of default, or Default or Event of Default (and if an event under subclause (B) above, a copy of any notice received showing deviations from the issuer or holder of Company’s budget, such Debt) and the action which Borrower proposes to take with respect thereto;
(viii) simultaneously with the delivery of the financial statements under SUBPARAGRAPH 5.01(c)(ii) above, a certificate from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower (A) demonstrating compliance with the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and other accounts receivable and a listing and aging of all accounts payable;
(ix) as soon as available, the annual written report of auditors pertaining to Borrower's and each of its Subsidiaries' be prepared on an internal controls submitted to Borrower by Borrower's independent public accountants in connection with each annual audit made by such accountants;
(x) within thirty (30) days after the close of each fiscal quarter in each fiscal year, a Borrowing Base Certificate of Borrower, appropriately completed by the chief financial officer or the vice president and treasurer of Borrower;
(xi) without duplication of CLAUSE (vii) above, upon delivery thereof pursuant to the Subordinated Lender Documents or the Note Purchase Documents, a copy of any notice given to any Subordinated Lender, Note Purchaser or the Trustee by Borrower or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, a request for payment pursuant to Article 13 of the Indenture;
(xii) prompt written notice of any condition or event which has resulted or might result in (A) a Material Adverse Effect, or (B) a breach of, or noncompliance with, any term, condition or covenant contained herein, or (C) a material breach of, or noncompliance with, any term, condition or covenant of any contract to which Borrower or any Subsidiary is a party or by which it or its property may be bound which contract is material to Borrower and the Subsidiaries as a whole;
(xiii) prompt written notice of any actual or threatened claims, litigation, suits, proceedings or disputes (whether or not purportedly on behalf of Borrower) against or affecting Borrower or any Subsidiary or any of their property which, if adversely determined, would have a Material Adverse Effect (including, without in any way limiting the foregoing, claims, litigation, suits, proceedings or disputes involving monetary amounts in excess of One Million Dollars ($1,000,000) not covered by insurance or self-insurance), or any material labor controversy resulting in or threatening to result in a strike against Borrower or any Subsidiary, or any proposal by any Governmental Authority to acquire any of the material assets or business of Borrower or any Subsidiary, if such strike or acquisition would have a Material Adverse Effect;
(xiv) thirty (30) days' prior written notice of any change in the legal name of Borrower;
(xv) concurrently with filing, copies of IRS Form 5500 filed annually with respect to each Plan of Borrower or any Subsidiary required to file such form, and, promptly after receipt thereof, copies of any notice Borrower or any member of the Controlled Group may receive from the PBGC or the Internal Revenue Service with respect to any Plan; PROVIDED, HOWEVER, that this CLAUSE (xv) shall not apply to notices of general application promulgated by the Department of Labor;
(xvi) as soon as possible, and in any event within thirty (30) days after Borrower or any Subsidiary knows or has reason to know that (A) any Reportable Event has occurred with respect to any Plan, (B) Borrower or any Subsidiary has become obligated to contribute to any Multiemployer Plan; or (C) Borrower or any member of the Controlled Group has incurred withdrawal liability with respect to any Multiemployer Plan, a statement from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details as to such event and the action which Borrower or the affected Subsidiary proposes to take with respect thereto, together with a copy of the notice of any Reportable Event as described in (A) above as given to the PBGC if a copy of such notice is available to Borrower or the affected Subsidiary;
(xvii) within twenty (20) days of Agent's or any Bank's request therefor: (A) a current list of the names, addresses and outstanding debts of all Account Debtors, and (B) a current list of the names, addresses and outstanding amounts due all creditors of Borrower or any Subsidiary;
(xviii) within (10) days after Agent's or any Bank's request therefor, copies of federal income tax returns filed by Borrower and its Subsidiaries;
(xix) thirty (30) days prior to any change in the location of any of Borrower's places of business or of the establishment of any new, or the discontinuance of any existing place of business, written notice of such change, establishment or discontinuance; and
(xx) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Borrower or Borrower's Subsidiaries, and compliance by Borrower with the terms of this Agreement and the other Credit Documents, as Agent or any Bank may from time to time reasonably requestmanagement basis.
Appears in 2 contracts
Samples: Warrant Holder Rights Agreement, Warrant Holder Rights Agreement (Affinion Group, Inc.)
Financial Statements and Notices. The Borrower will shall furnish to Agent the -------------------------------- Lender the following financial statements, information and each Banknotices:
(ia) within thirty (30) days after the close of each calendar month in each fiscal year, copies of the consolidated and, to the extent prepared, consolidating financial statements for such calendar month for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of income and retained earnings (such income statements to include a comparison between projected income for each location at which Borrower and its Subsidiaries conduct business as set forth in the annual financial projections provided under CLAUSE (v) and actual performance for each location at which Borrower and its Subsidiaries conduct business); and (B) balance sheets as of the end of such monthly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustment);
(ii) within Within forty-five (45) days after the close of each fiscal quarter in each the first three quarters of Borrower's fiscal year, copies of commencing with the consolidated and, to the extent prepared, consolidating financial statements for such fiscal quarter ending September 30, 1998, for the Borrower and its Subsidiaries, prepared by Borrower, each to includesubsidiaries on a consolidated basis: (Ai) statements a statement of cash flowsflows for such quarter; (Bii) statements of an income and retained earningsstatement for such quarter; and (Ciii) a balance sheets sheet as of the end of such quarterly periodquarter. All such statements shall be prepared on a consolidated and consolidating basis for the Borrower and its subsidiaries, all in reasonable detail, subject to year-end audit adjustments and without footnotes, shall include appropriate comparisons to the same period for the prior year, and shall be certified by Borrower's president and chief executive officer, chief the principal financial officer or of the vice president and treasurer to present fairly the financial condition and other information reflected therein and Borrower to have been prepared in accordance with GAAP (consistently applied, subject to year-end audit adjustment)adjustments;
(iiib) within Within ninety (90) days after the close of each Borrower's fiscal year, commencing with the fiscal year ending December 31, 1998 a copy of the consolidated andannual audit report for such year for the Borrower, to including for the extent prepared, consolidating financial statements for Borrower and its Subsidiaries subsidiaries on a consolidated basis (i) a statement of stockholders' equity for such fiscal year; (ii) a statement of cash flows for such fiscal year, each to include: (Aiii) statements of cash flows; (B) statements of an income and retained earnings; statement for such fiscal year, and (Civ) a balance sheets sheet as of the end of such fiscal year; such , together with like internal unaudited consolidating financial statements for the Borrower and its subsidiaries. All statements required by this Section 5.1(b) shall include appropriate comparisons to the prior year. Such consolidated financial statements shall be audited by an independent certified public accountant acceptable to the Required Banks, to contain the unqualified opinion of such accountants that such statements have been presented fairly in all material respects in accordance with GAAP, together with a certificate of such accounting firm to the Agent and the Banks:
(1) stating that in the course of the regular examination of the business of Borrower and the Subsidiaries, which examination was conducted by such accounting firm in accordance with GAAP, nothing has come to the attention of such accounting firm which would cause them to believe that shall include a Default or Event of Default has occurred and is continuing, or if, in the opinion report of such accounting firm, a Default or an Event of Default has occurred and is continuing, a statement which report shall be unqualified as to the nature thereof, (2) setting forth in reasonable detail the calculations made during such period Borrower's status as a going concern and as to the scope of the end of audit performed by such period accounting firm and shall state that such financial statements fairly present in determining compliance with all material respects the financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND (3) stating that Agent position of the Borrower and its subsidiaries as at the dates indicated and the Banks may rely thereonresults of their operations and their cash flows for the periods indicated in conformity with GAAP, consistently applied;
(ivc) contemporaneously with each monthly, quarterly and year-end financial report required by the foregoing CLAUSES (i), (ii) AND (iii), a certificate of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Parent stating that he or she has individually reviewed the provisions of this Agreement and that a review of the activities of Parent and the Subsidiaries during such monthly, quarterly and yearly period, as the case may be, has been made by him or her or under his or her supervision, with a view to determining whether Parent has fulfilled all its obligations under this Agreement, and that Parent has observed and performed each undertaking contained in this Agreement and is not in default in the observance or performance of any of the provisions hereof or, if Parent shall be so in default, specifying all such defaults and events of which he may have knowledge;
(v) within ninety (90) days after the close of each fiscal year, a projection and estimate (to the best of Borrower's ability at the time made) of the financial position and the results for, and as of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower and its Subsidiaries, on a consolidated and, to the extent prepared, consolidating basis, prepared by Borrower, such projections to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of each such annual period, all in reasonable detail certified by Borrower's chief financial officer or vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein;
(vi) promptly Promptly after they are sent, made available or filed, copies of all reports, proxy statements and financial statements that the Borrower sends or makes available to its stockholders and, concurrently with filing, copies of and all registration statements and reports that the Borrower files may file with the Securities and Exchange Commission, including, but not limited to, 10Q, 10K and 8K reports, or with any other Governmental Authority where such registration statements and reports may be filed;
(viid) as soon as possiblePromptly, and but in any no event within later than five (5) days Banking Days after a Responsible Officer the principal financial officer of the Borrower has obtains knowledge of (A) the occurrence of a an Event of Default or an Event of Incipient Default, or (B) any default or event of default as defined in any other evidence of Debt or under any other agreement, indenture or other instrument under which such Debt has been issued, whether or not such Debt is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) and such Event of Default, Default or such other default or event of default is not waived on or before two (2) Business Days after it occurs, provide the Lender with a statement of an authorized officer of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details of such default or event of default, or Default or Event of Default (and if an event under subclause (B) above, a copy of any notice received from the issuer or holder of such Debt) Incipient Default and the action which the Borrower proposes to take with respect thereto;
(viiie) simultaneously with Promptly but in no event later than five (5) Banking Days after the delivery principal financial officer of the financial statements under SUBPARAGRAPH 5.01(c)(ii) aboveBorrower learns thereof, a certificate from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower (A) demonstrating compliance with the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and other accounts receivable and a listing and aging of all accounts payable;
(ix) as soon as available, the annual written report of auditors pertaining to Borrower's and each of its Subsidiaries' internal controls submitted to Borrower by Borrower's independent public accountants in connection with each annual audit made by such accountants;
(x) within thirty (30) days after the close of each fiscal quarter in each fiscal year, a Borrowing Base Certificate of Borrower, appropriately completed by the chief financial officer or the vice president and treasurer of Borrower;
(xi) without duplication of CLAUSE (vii) above, upon delivery thereof pursuant to the Subordinated Lender Documents or the Note Purchase Documents, a copy of any notice given to any Subordinated Lender, Note Purchaser or the Trustee by Borrower or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, a request for payment pursuant to Article 13 of the Indenture;
(xii) prompt written notice of any condition or event which has resulted or might result in (A) a Material Adverse Effect, or (B) a breach of, or noncompliance with, any term, condition or covenant contained herein, or (C) a material breach of, or noncompliance with, any term, condition or covenant of any contract to which Borrower or any Subsidiary is a party or by which it or its property may be bound which contract is material to Borrower and the Subsidiaries as a whole;
(xiii) prompt written notice of any actual or threatened claims, litigation, suits, investigations, or proceedings against or disputes affecting the Borrower, including, without limitation: (i) any claim, litigation, suit, investigation, proceeding or dispute involving a monetary amount, whether or not purportedly on behalf covered by insurance, in excess of Borrowerone million Dollars ($1,000,000), (ii) against any denial, suspension, or affecting revocation of any material Governmental Approval; (iii) any investigation or proceeding before or by any Governmental Authority which is reasonably likely to have a Material Adverse Effect; (iv) any Environmental Claim from any person concerning any alleged violation of any Environmental Law by the Borrower or any Subsidiary or any of their property which, if adversely determined, would its predecessors which is reasonably likely to either (x) have a Material Adverse Effect or (includingy) result in a liability to the Borrower, without in any way limiting the foregoingwhether or not insured, claims, litigation, suits, proceedings or disputes involving monetary amounts in excess of One Million one million Dollars ($1,000,000); or (v) not covered the commencement of any investigation by insurance any Government Authority, or self-insurance)the receipt by the Borrower of written request by any Government Authority for information, relating to the handling, storage or disposal of any Hazardous Substance, or the release thereof into the environment, by the Borrower, or any material labor controversy resulting in or threatening to result in a strike against Borrower or any Subsidiaryof its predecessors, or any proposal other Person, which investigation or request is other than routine; and
(f) Within a reasonable time after a request therefor, such other information as the Lender may reasonably request. Each notice pursuant to this Section 5.1 (d), (e) or (f) shall be accompanied by any Governmental Authority to acquire any a written statement by an authorized officer of the material assets or business of Borrower or any Subsidiary, if such strike or acquisition would have a Material Adverse Effect;
(xiv) thirty (30) days' prior written notice of any change in the legal name of Borrower;
(xv) concurrently with filing, copies of IRS Form 5500 filed annually with respect to each Plan of Borrower or any Subsidiary required to file such form, and, promptly after receipt thereof, copies of any notice Borrower or any member of the Controlled Group may receive from the PBGC or the Internal Revenue Service with respect to any Plan; PROVIDED, HOWEVER, that this CLAUSE (xv) shall not apply to notices of general application promulgated by the Department of Labor;
(xvi) as soon as possible, and in any event within thirty (30) days after Borrower or any Subsidiary knows or has reason to know that (A) any Reportable Event has occurred with respect to any Plan, (B) Borrower or any Subsidiary has become obligated to contribute to any Multiemployer Plan; or (C) Borrower or any member of the Controlled Group has incurred withdrawal liability with respect to any Multiemployer Plan, a statement from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details as of the occurrence referred to therein known to such event officer and stating what action the action which Borrower or the affected Subsidiary proposes to take with respect thereto, together with a copy of the notice of any Reportable Event as described in (A) above as given to the PBGC if a copy of such notice is available to Borrower or the affected Subsidiary;
(xvii) within twenty (20) days of Agent's or any Bank's request therefor: (A) a current list of the names, addresses and outstanding debts of all Account Debtors, and (B) a current list of the names, addresses and outstanding amounts due all creditors of Borrower or any Subsidiary;
(xviii) within (10) days after Agent's or any Bank's request therefor, copies of federal income tax returns filed by Borrower and its Subsidiaries;
(xix) thirty (30) days prior to any change in the location of any of Borrower's places of business or of the establishment of any new, or the discontinuance of any existing place of business, written notice of such change, establishment or discontinuance; and
(xx) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Borrower or Borrower's Subsidiaries, and compliance by Borrower with the terms of this Agreement and the other Credit Documents, as Agent or any Bank may from time to time reasonably request.
Appears in 2 contracts
Samples: Credit Agreement (Guidant Corp), Credit Agreement (Incontrol Inc)
Financial Statements and Notices. The Borrower will shall furnish to Agent the Lender the following financial statements, information and each Banknotices:
(ia) within thirty (30) days after the close of each calendar month in each fiscal year, copies of the consolidated and, to the extent prepared, consolidating financial statements for such calendar month for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of income and retained earnings (such income statements to include a comparison between projected income for each location at which Borrower and its Subsidiaries conduct business as set forth in the annual financial projections provided under CLAUSE (v) and actual performance for each location at which Borrower and its Subsidiaries conduct business); and (B) balance sheets as of the end of such monthly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustment);
(ii) within Within forty-five (45) days after the close of each fiscal quarter in each the first three quarters of Borrower's fiscal year, copies of for the consolidated and, to the extent prepared, consolidating financial statements for such fiscal quarter for Borrower and its Subsidiariessubsidiaries on a consolidated basis, prepared by Borrowercommencing with the fiscal quarter ending March 31, each to include1999: (Ai) statements a statement of stockholders' equity for such quarter; (ii) a statement of cash flowsflows for such quarter; (Biii) statements of an income and retained earningsstatement for such quarter; and (Civ) a balance sheets sheet as of the end of such quarterly periodquarter. All such statements shall be prepared on a consolidated and consolidating basis for the Borrower and its subsidiaries, all in reasonable detail, subject to year-end audit adjustments and without footnotes, shall include appropriate comparisons to the same period for the prior year, and shall be certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly Chief Financial Officer of the financial condition and other information reflected therein and Borrower to have been prepared in accordance with GAAP (consistently applied, subject to year-end audit adjustment);adjustments; THE SYMBOL `[***]' IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION 23
(iiib) within Within ninety (90) days after the close of each Borrower's fiscal year, commencing with the fiscal year ending December 31, 1998, (i) a copy of the consolidated andannual audit report for such year for the Borrower, to including for the extent prepared, consolidating financial statements for Borrower and its Subsidiaries subsidiaries on a consolidated basis, (ii) a statement of stockholders' equity for such fiscal year; (iii) a statement of cash flows for such fiscal year, each to include: (Aiv) statements of cash flows; (B) statements of an income and retained earnings; statement for such fiscal year, and (Cv) a balance sheets sheet as of the end of such fiscal year; such , together with like internal unaudited consolidating financial statements for the Borrower and its subsidiaries. All statements required by this Section 5.1(b) shall include appropriate comparisons to the prior year. Such consolidated financial statements shall be audited by an independent certified public accountant acceptable to the Required Banks, to contain the unqualified opinion of such accountants that such statements have been presented fairly in all material respects in accordance with GAAP, together with a certificate of such accounting firm to the Agent and the Banks:
(1) stating that in the course of the regular examination of the business of Borrower and the Subsidiaries, which examination was conducted by such accounting firm in accordance with GAAP, nothing has come to the attention of such accounting firm which would cause them to believe that shall include a Default or Event of Default has occurred and is continuing, or if, in the opinion report of such accounting firm, a Default or an Event of Default has occurred and is continuing, a statement which report shall be unqualified as to the nature thereof, (2) setting forth in reasonable detail the calculations made during such period Borrower's status as a going concern and as to the scope of the end of audit performed by such period accounting firm and shall state that such financial statements fairly present in determining compliance with all material respects the financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND (3) stating that Agent position of the Borrower and its subsidiaries as at the dates indicated and the Banks may rely thereonresults of their operations and their cash flows for the periods indicated in conformity with GAAP, consistently applied;
(ivc) contemporaneously with each monthly, quarterly and year-end financial report required by the foregoing CLAUSES (i), (ii) AND (iii), a certificate of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Parent stating that he or she has individually reviewed the provisions of this Agreement and that a review of the activities of Parent and the Subsidiaries during such monthly, quarterly and yearly period, as the case may be, has been made by him or her or under his or her supervision, with a view to determining whether Parent has fulfilled all its obligations under this Agreement, and that Parent has observed and performed each undertaking contained in this Agreement and is not in default in the observance or performance of any of the provisions hereof or, if Parent shall be so in default, specifying all such defaults and events of which he may have knowledge;
(v) within ninety (90) days after the close of each fiscal year, a projection and estimate (to the best of Borrower's ability at the time made) of the financial position and the results for, and as of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower and its Subsidiaries, on a consolidated and, to the extent prepared, consolidating basis, prepared by Borrower, such projections to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of each such annual period, all in reasonable detail certified by Borrower's chief financial officer or vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein;
(vi) promptly Promptly after they are sent, made available or filed, copies of all reports, proxy statements and financial statements that the Borrower sends or makes available to its stockholders and, concurrently with filing, copies of and all registration statements and reports that the Borrower files may file with the Securities and Exchange Commission, including, but not limited to, 10Q, 10K and 8K reports, or with any other Governmental Authority where such registration statements and reports may be filedSEC;
(viid) as soon as possible, and Promptly but in any no event within later than five (5) days Banking Days after a Responsible Officer of the Borrower has obtains knowledge of (A) the occurrence of a an Event of Default or an Event of Incipient Default, or (B) any default or event of default as defined in any other evidence of Debt or under any other agreement, indenture or other instrument under which such Debt has been issued, whether or not such Debt is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) and such Event of Default, Default or such other default or event of default is not waived on or before two (2) Business Days after it occurs, provide the Lender with a statement of an authorized officer of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details of such default or event of default, or Default or Event of Default (and if an event under subclause (B) above, a copy of any notice received from the issuer or holder of such Debt) Incipient Default and the action which the Borrower proposes to take with respect thereto;
(viiie) simultaneously with the delivery of the financial statements under SUBPARAGRAPH 5.01(c)(iiPromptly but in no event later than five (5) above, a certificate from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower (A) demonstrating compliance with the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and other accounts receivable and a listing and aging of all accounts payable;
(ix) as soon as available, the annual written report of auditors pertaining to Borrower's and each of its Subsidiaries' internal controls submitted to Borrower by Borrower's independent public accountants in connection with each annual audit made by such accountants;
(x) within thirty (30) days Banking Days after the close of each fiscal quarter in each fiscal yearBorrower learns thereof, a Borrowing Base Certificate of Borrower, appropriately completed by the chief financial officer or the vice president and treasurer of Borrower;
(xi) without duplication of CLAUSE (vii) above, upon delivery thereof pursuant to the Subordinated Lender Documents or the Note Purchase Documents, a copy of any notice given to any Subordinated Lender, Note Purchaser or the Trustee by Borrower or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, a request for payment pursuant to Article 13 of the Indenture;
(xii) prompt written notice of any condition or event which has resulted or might result in (A) a Material Adverse Effect, or (B) a breach of, or noncompliance with, any term, condition or covenant contained herein, or (C) a material breach of, or noncompliance with, any term, condition or covenant of any contract to which Borrower or any Subsidiary is a party or by which it or its property may be bound which contract is material to Borrower and the Subsidiaries as a whole;
(xiii) prompt written notice of any actual or threatened claims, litigation, suits, investigations, or proceedings against or disputes affecting the Borrower or any of its subsidiaries, including, without limitation: (i) any claim, litigation, suit, investigation, proceeding or dispute involving a monetary amount, whether or not purportedly on behalf covered by insurance, in excess of Borrowertwo million dollars ($2,000,000), (ii) against any denial, suspension, or affecting revocation of any material Governmental Approval; (iii) any investigation or proceeding before or by any Governmental Authority which is reasonably likely to have a Material Adverse Effect; (iv) any Environmental Claim from any person concerning any alleged violation of any Environmental Law by the Borrower or any Subsidiary of its subsidiaries or any of its or their property which, if adversely determined, would predecessors which is reasonably likely to either (x) have a Material Adverse Effect or (includingy) result in a liability to the Borrower or any of its subsidiaries, without in any way limiting the foregoingwhether or not insured, claims, litigation, suits, proceedings or disputes involving monetary amounts in excess of One Million Dollars two million dollars ($1,000,0002,000,000); or (v) not covered the commencement of any investigation by insurance any Government Authority, or self-insurance)the receipt by the Borrower or any of its subsidiaries of THE SYMBOL `[***]' IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION written request by any Government Authority for information, relating to the handling, storage or disposal of any Hazardous Substance, or the release thereof into the environment, by the Borrower or any of its subsidiaries or any of its or their predecessors, or any material labor controversy resulting in other Person, which investigation or threatening request is other than routine; and
(f) Within a reasonable time after a request therefor, such other information as the Lender may reasonably request. Each notice pursuant to result in this Section 5.1 (d), (e) or (f) shall be accompanied by a strike against Borrower or any Subsidiary, or any proposal written statement by any Governmental Authority to acquire any an authorized officer of the material assets or business of Borrower or any Subsidiary, if such strike or acquisition would have a Material Adverse Effect;
(xiv) thirty (30) days' prior written notice of any change in the legal name of Borrower;
(xv) concurrently with filing, copies of IRS Form 5500 filed annually with respect to each Plan of Borrower or any Subsidiary required to file such form, and, promptly after receipt thereof, copies of any notice Borrower or any member of the Controlled Group may receive from the PBGC or the Internal Revenue Service with respect to any Plan; PROVIDED, HOWEVER, that this CLAUSE (xv) shall not apply to notices of general application promulgated by the Department of Labor;
(xvi) as soon as possible, and in any event within thirty (30) days after Borrower or any Subsidiary knows or has reason to know that (A) any Reportable Event has occurred with respect to any Plan, (B) Borrower or any Subsidiary has become obligated to contribute to any Multiemployer Plan; or (C) Borrower or any member of the Controlled Group has incurred withdrawal liability with respect to any Multiemployer Plan, a statement from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details as of the occurrence referred to therein known to such event officer and stating what action the action which Borrower or the affected Subsidiary proposes to take with respect thereto, together with a copy of the notice of any Reportable Event as described in (A) above as given to the PBGC if a copy of such notice is available to Borrower or the affected Subsidiary;
(xvii) within twenty (20) days of Agent's or any Bank's request therefor: (A) a current list of the names, addresses and outstanding debts of all Account Debtors, and (B) a current list of the names, addresses and outstanding amounts due all creditors of Borrower or any Subsidiary;
(xviii) within (10) days after Agent's or any Bank's request therefor, copies of federal income tax returns filed by Borrower and its Subsidiaries;
(xix) thirty (30) days prior to any change in the location of any of Borrower's places of business or of the establishment of any new, or the discontinuance of any existing place of business, written notice of such change, establishment or discontinuance; and
(xx) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Borrower or Borrower's Subsidiaries, and compliance by Borrower with the terms of this Agreement and the other Credit Documents, as Agent or any Bank may from time to time reasonably request.
Appears in 1 contract
Financial Statements and Notices. The Borrower will shall -------------------------------- furnish to Agent the Lender the following financial statements and each Banknotices:
(ia) within thirty (30) days after the close of each calendar month As soon as available but in each fiscal year, copies of the consolidated and, to the extent prepared, consolidating financial statements for such calendar month for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of income and retained earnings (such income statements to include a comparison between projected income for each location at which Borrower and its Subsidiaries conduct business as set forth in the annual financial projections provided under CLAUSE (v) and actual performance for each location at which Borrower and its Subsidiaries conduct business); and (B) balance sheets as of the end of such monthly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustment);
(ii) any case within forty-five (45) days after the close of each fiscal quarter in each Borrower's fiscal year, copies commencing with the quarter ending May 31, 1997, a copy of the consolidated and, to the extent prepared, consolidating financial statements unaudited balance sheet and income statement for such fiscal quarter for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of such quarterly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustment);.
(iiib) within Within ninety (90) calendar days after the close of each fiscal year, a copy of the annual audit report for such year for the Borrower, including therein (i) a consolidated andstatement of stockholders' equity for such fiscal year; (ii) a consolidated statement of changes in financial position or statement of cash flows for such fiscal year, to (iii) a consolidated income statement of the extent prepared, consolidating financial statements for Borrower and its Subsidiaries for such fiscal year, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (Civ) a consolidated balance sheets sheet of the Borrower and its Subsidiaries as of the end of such fiscal year; such . The consolidated income statements, consolidated statement of changes in financial statements to position or statement of cash flows, and balance sheets shall be audited by independent certified public accountant accountants reasonably acceptable to the Required BanksLender, to contain the unqualified opinion of and shall be certified by such accountants that such statements have as having been presented fairly in all material respects prepared in accordance with GAAP, together with a certificate of GAAP consistently applied and such accounting firm accountants report shall be unqualified. Such accountants shall also certify to the Agent and the Banks:
(1) stating Lender that in the course of the regular annual examination of the business of the Borrower and the its Subsidiaries, which examination was conducted by such accounting firm accountants in accordance with GAAPgenerally accepted auditing standards, nothing has come to the attention of such accounting firm which would cause them to believe accountants have obtained no knowledge that a Default or an Event of Default Default, or an Incipient Default, has occurred in connection with any of the Financial Tests set forth in Section 6.22 and is continuingcontinuing as of the date of certification, or if, in the opinion of such accounting firmaccountants, a Default or an Event of Default or an Incipient Default has occurred in connection with any of the Financial Tests set forth in Section 6.22 and is continuing, a statement as to the nature thereof, .
(2c) setting forth in reasonable detail the calculations made during such period and as Contemporaneously with each of the end of such period in determining compliance with the financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND (3) stating that Agent and the Banks may rely thereon;
(iv) contemporaneously with each monthly, quarterly and year-end financial report reports required by the foregoing CLAUSES subsections (ia) and (b), (ii) AND (iii), a certificate of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Parent stating that he or she has individually reviewed the provisions of this Agreement and that a review of the activities of Parent and the Subsidiaries during such monthly, quarterly and yearly period, as the case may be, has been made by him or her or under his or her supervision, with a view to determining whether Parent has fulfilled all its obligations under this Agreement, and that Parent has observed and performed each undertaking contained in this Agreement and is not in default certificates in the observance or performance form of any each of the provisions hereof or, if Parent shall be so in default, specifying all such defaults Exhibits 6.2.1 and events of which he may have knowledge6.2.2 attached hereto;
(vd) within ninety (90) days after the close of each fiscal year, a projection and estimate (to the best of Borrower's ability at the time made) of the financial position and the results for, and as of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower and its Subsidiaries, on a consolidated and, to the extent prepared, consolidating basis, prepared by Borrower, such projections to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of each such annual period, all in reasonable detail certified by Borrower's chief financial officer or vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein;
(vi) promptly Promptly after they are sent, made available or filed, copies of all material reports, proxy statements and financial statements that the Borrower sends or makes available to its stockholders and, concurrently with filing, copies of and all registration statements and reports that the Borrower files with the Securities and Exchange Commission, including, but not limited to, 10Q, 10K and 8K reports, or with any other Governmental Authority where such registration statements and reports may be filedgovernmental official, agency or authority;
(viie) as soon as possible, and Promptly but in any no event within five later than ten (510) days Banking Days after a Responsible Officer of Borrower has obtains actual knowledge of (Ai) the occurrence of a an Event of Default or an Event of Incipient Default, or (Bii) any default or event Event of default Default as defined in any other evidence of Debt Indebtedness or under any other material agreement, indenture or other instrument under which such Debt evidence of Indebtedness has been issued, whether or not such Debt indebtedness is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) and such Event of Default, Default accelerated or such other default or event of default is not waived on or before two waived, the Borrower shall notify the Lender thereof, and within ten (210) Business Banking Days after it occursobtaining such knowledge, the a statement of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower a Responsible Officer setting forth details of such default or event of default, or Default or Event of Default (and if an event under subclause (B) above, a copy of any notice received from the issuer or holder of such Debt) Incipient Default and the action which the Borrower proposes to take with respect thereto;
(viiif) simultaneously with the delivery of the financial statements under SUBPARAGRAPH 5.01(c)(ii) above, a certificate from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower (A) demonstrating compliance with the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and other accounts receivable and a listing and aging of all accounts payable;
(ix) as As soon as available, the annual any written report of auditors pertaining to involving the Borrower's and each of its Subsidiaries' internal controls submitted to the Borrower by Borrower's its independent certified public accountants in connection with each its annual or interim special audit made by such accountants;
(x) within thirty (30) days after of the close financial condition of each fiscal quarter in each fiscal year, a Borrowing Base Certificate of Borrower, appropriately completed by the chief financial officer or the vice president and treasurer of Borrower;
(xig) without duplication of CLAUSE Promptly but in no event later than five (vii5) aboveBanking Days after a Responsible Officer learns thereof, upon delivery thereof pursuant to the Subordinated Lender Documents or the Note Purchase Documents, a copy of any notice given to any Subordinated Lender, Note Purchaser or the Trustee by Borrower or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, a request for payment pursuant to Article 13 of the Indenture;
(xii) prompt written notice of any condition or event which has resulted or might result in (A) a Material Adverse Effect, or (B) a breach of, or noncompliance with, any term, condition or covenant contained herein, or (C) a material breach of, or noncompliance with, any term, condition or covenant of any contract to which Borrower or any Subsidiary is a party or by which it or its property may be bound which contract is material to Borrower and the Subsidiaries as a whole;
(xiii) prompt written notice of any actual or threatened claims, litigation, suits, investigations, proceedings or disputes (whether or not purportedly on behalf of Borrower) against or affecting the Borrower or any Subsidiary or any of their property which, if adversely determined, would its Subsidiaries which may have a Material Adverse Effect (Effect, including, without in limitation: (i) any way limiting the foregoing, claimsclaim, litigation, suitssuit, proceedings investigation, proceeding or disputes dispute involving a monetary amounts amount in excess of One Million Two Hundred Fifty Thousand Dollars ($1,000,000) 250,000.00), whether or not covered by insurance or self-insurance), or ; (ii) any material labor controversy resulting in or threatening which is reasonably expected to result in a strike against the Borrower or any Subsidiary, or of its Subsidiaries; (iii) any proposal by any Governmental Authority public authority to acquire any of the material assets or business of the Borrower or any Subsidiaryof its Subsidiaries, other than in the ordinary course of Borrower's business; (iv) any investigation or proceeding before or by any administrative or governmental agency, the effect of which could reasonably be expected to limit, prohibit or restrict in any material respect the manner in which the Borrower or any of its Subsidiaries currently conducts its business or to declare any substance contained in the products manufactured or distributed by the Borrower or any of its Subsidiaries to be dangerous; (v) any summons, citation, directive, notice, complaint, letter or other communication, whether oral or written, from any person concerning any alleged material violation by the Borrower, or any predecessor of the Borrower, or any of its Subsidiaries, of any applicable federal, state or local environmental, health or safety statutes or regulations which has a reasonable possibility to materially affect any of the properties or the operations of the Borrower or such Subsidiary or any alleged material noncompliance of any of the properties or the operations of the Borrower or such Subsidiary therewith; or (vi) any investigation of or request for information from the Borrower or any of its Subsidiaries relating to the handling, storage or disposal of any Hazardous Substance, or the release thereof into the environment, by the Borrower or such Subsidiary or any of their predecessors or any other Person, which investigation or request is other than routine or in response to Borrower's application for renewal of a permit;
(h) Not later than ten (10) calendar days after request by the Lender therefor, a copy of the working papers for any of the Borrower's Subsidiaries used by the Borrower in its preparation of consolidated financial statements for itself and its Subsidiaries;
(i) Within ninety (90) calendar days after the close of each fiscal year and, if prepared, within ten (10) days following such strike preparation if prepared for a fiscal quarter, an operating and capital budget for the Borrower and each Subsidiary showing cash flow projections and projected capital expenditures for the following fiscal year or acquisition would have quarter, as the case may be;
(j) Within five (5) Banking Days after the management of the Borrower obtains knowledge that a Material Adverse Effect;
(xiv) thirty (30) days' prior written notice of any change in the legal name of Borrower;
(xv) concurrently with filing, copies of IRS Form 5500 filed annually with respect to each Plan of Borrower or any Subsidiary required to file such form, and, promptly after receipt thereof, copies of any notice Borrower or any member of the Controlled Group may receive from the PBGC or the Internal Revenue Service with respect to any Plan; PROVIDED, HOWEVER, that this CLAUSE (xv) shall not apply to notices of general application promulgated by the Department of Labor;
(xvi) as soon as possible, and in any event within thirty (30) days after Borrower or any Subsidiary knows or has reason to know that (A) any Reportable Event Change has occurred with respect to any Planin its business, (B) Borrower properties or any Subsidiary has become obligated to contribute to any Multiemployer Plan; its condition, financial or (C) Borrower or any member of the Controlled Group has incurred withdrawal liability with respect to any Multiemployer Planotherwise, a statement from of an Authorized Officer of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details as to of such event Material Adverse Change and the action which the Borrower or the affected Subsidiary proposes to take with respect thereto, together with a copy of the notice of any Reportable Event as described in (A) above as given to the PBGC if a copy of such notice is available to Borrower or the affected Subsidiary;
(xviik) within twenty (20) days Immediately after a Responsible Officer obtains actual knowledge thereof, report to the Lender all matters materially affecting the value, enforceability or collectibility of Agent's or any Bank's request therefor: (A) a current list material portion of the namesReceivables or Inventory including, addresses and outstanding debts of all Account Debtorswithout limitation, and (B) a current list of the names, addresses and outstanding amounts due all creditors of Borrower or any Subsidiary;
(xviii) within (10) days after Agent's or any Bank's request therefor, copies of federal income tax returns filed by Borrower and its Subsidiaries;
(xix) thirty (30) days prior to any change in the location of any of Borrower's places of business reclamation or of the establishment of any newrepossession of, or the discontinuance return to the Borrower of, a material amount of goods or claims or disputes asserted by any existing place of business, written notice of such change, establishment Account Debtor or discontinuanceother obligor; and
(xxl) Such other instrumentsWithin five (5) Banking Days after the management of the Borrower acquires knowledge of the entry of a judgment against the Borrower in excess of Fifty Thousand Dollars ($50,000), agreementsa statement of an Authorized Officer of the Borrower setting forth the amount of such judgment, certificates, opinions, statements, documents the parties to such action and information relating whether an appeal is to the operations or condition (financial or otherwise) of Borrower or Borrower's Subsidiaries, and compliance by Borrower with the terms of this Agreement and the other Credit Documents, as Agent or any Bank may from time to time reasonably request.be taken; and
Appears in 1 contract
Samples: Loan Agreement (American Eco Corp)
Financial Statements and Notices. Borrower will furnish shall promptly deliver to the Agent and each BankLender:
(ia) within thirty (30) days after the close end of each calendar month, commencing with the month in each fiscal yearof December, copies of 1996 (but the consolidated and, to the extent prepared, consolidating financial statements for such calendar the month for Borrower of December, 1996, shall not be due until February 14, 1997), consolidated and its Subsidiaries, prepared by Borrower, each to include: (A) consolidating statements of income and retained earnings (such income statements to include a comparison between projected income for each location at which of cash flows of Borrower and its Subsidiaries conduct business as set forth in for such period and for the annual financial projections provided under CLAUSE (v) period from the beginning of such fiscal year to the end of such period, and actual performance for each location at which consolidated and consolidating balance sheets of Borrower and its Subsidiaries conduct business); and (B) balance sheets as of the end of such period, setting forth in the case of each monthly periodstatement in comparative form figures for the corresponding period in the preceding fiscal year, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to changes resulting from normal year-end audit adjustment)adjustments) but not audited and accompanied by accounts receivable aging schedules for Borrower and each Subsidiary in form and substance satisfactory to the Required Lenders which schedules shall segregate such information for Borrower and each Subsidiary and shall show the aggregate dollar value of the accounts receivable for each such Person and the age of individual items thereof as of the last day of the relevant fiscal month;
(iib) within forty-five (45) days after the close end of each fiscal quarter in each fiscal year, copies of the consolidated and, to the extent prepared, consolidating financial statements for such fiscal quarter for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of cash flows; (B) consolidated and consolidating statements of income and retained earnings; statements of cash flows of Borrower and (C) balance sheets as its Subsidiaries for such period and for the period from the beginning of such fiscal year to the end of such period, and consolidated and consolidating balance sheets of Borrower and its Subsidiaries as at the end of such period, setting forth in the case of each quarterly periodstatement in comparative form figures for the corresponding period in the preceding fiscal year, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to changes resulting from normal year-end audit adjustmentadjustments), but not audited, and accompanied by (i) schedules (in form and substance reasonably satisfactory to the Required Lenders) of the Capitalized Lease Obligations, the Intercompany Loans and all other Indebtedness for borrowed money of each of the Borrower and its Subsidiaries outstanding as of the end of such quarter, (ii) a schedule (in form and substance reasonably satisfactory to the Required Lenders) of all equipment or other fixed assets purchased as well as all other capital expenditures made during such quarter by the Borrower and any of its Subsidiaries, and (iii) a duly completed and executed Compliance Certificate dated as of the date of the delivery of such financial statements;
(iiic) within ninety (90) days after the close end of each fiscal yearyear of Borrower, a copy consolidated and consolidating statements of the consolidated and, to the extent prepared, consolidating financial income and statements for of cash flows of Borrower and its Subsidiaries for such fiscal year, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; consolidated and (C) consolidating balance sheets of Borrower and its Subsidiaries as of at the end of such fiscal year; such financial statements , setting forth in each case in comparative form corresponding figures from the preceding annual audit, all in reasonable detail, prepared in accordance with GAAP and reasonably satisfactory in scope to be the Required Lenders and audited in accordance with generally accepted auditing standards and certified to Borrower by independent certified public accountant accountants of recognized standing selected by Borrower and reasonably acceptable to the Required BanksLenders whose certificate shall be unqualified, which financial statements shall be accompanied by (i) a schedule (in form and substance reasonably satisfactory to contain the unqualified opinion Required Lenders) of the Capitalized Lease Obligations, the Intercompany Loans and all other Indebtedness for borrowed money of each of the Borrower and its Subsidiaries outstanding as of the last day of such fiscal year, and (ii) a duly completed and executed Compliance Certificate dated as of the date of the delivery of such financial statements;
(d) promptly upon receipt thereof, a copy of each other report submitted to the Borrower or any Subsidiary by its independent public accountants that in connection with any annual, interim or special audit made by them of the books of the Borrower or any such Subsidiary (including, without limitation any management report prepared in connection with such accountants' annual audit of the Borrower and its Subsidiaries);
(e) within twenty (20) days after delivery of each of the quarterly and annual financial statements have been presented fairly described in all material respects in accordance with GAAPparagraphs (b) and (c) above, together Borrower also shall deliver to each of the Lender and the Agent a management report describing the operations and financial condition of the Borrower and its Subsidiaries as of and for the quarter or year then ended, which report shall include comparisons between the current period and the comparable period of the preceding fiscal year;
(f) not less than thirty (30) days after the beginning of each fiscal year of Borrower, Borrower also shall provide each of the Lenders and the Agent with a certificate copy of the Borrower's business plan for that fiscal year which shall include month-by-month projections for each of the Borrower and its Subsidiaries separately and for the Borrower on a consolidated basis;
(g) prior to the closing of any Acquisition which requires the Required Lenders' consent under Section 8.03 or 8.06 hereof or for which the proceeds of any Loan will be used to pay all or any part of the purchase price thereof, Borrower will provide each of the Lenders and the Agent with a copy of the term sheet, letter of intent and executive summary of Borrower's "due diligence" findings for such Acquisition, and to the extent that other relevant information regarding any such Acquisition is prepared and distributed by Borrower to its Board of Directors or any committee thereof, a copy of such accounting firm other information will be sent by Borrower to the Agent and the Banks:
(1) stating that in Lenders at the course time it is so made available to Borrower's Board of the regular examination of the business of Borrower and the Subsidiaries, which examination was conducted by such accounting firm in accordance with GAAP, nothing has come to the attention of such accounting firm which would cause them to believe that a Default Directors or Event of Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default or an Event of Default has occurred and is continuing, a statement as to the nature any committee thereof, (2) setting forth in reasonable detail the calculations made during such period and as of the end of such period in determining compliance with the financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND (3) stating that Agent and the Banks may rely thereon;
(iv) contemporaneously with each monthly, quarterly and year-end financial report required by the foregoing CLAUSES (i), (ii) AND (iii), a certificate of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Parent stating that he or she has individually reviewed the provisions of this Agreement and that a review of the activities of Parent and the Subsidiaries during such monthly, quarterly and yearly period, as the case may be, has been made by him or her or under his or her supervision, with a view to determining whether Parent has fulfilled all its obligations under this Agreement, and that Parent has observed and performed each undertaking contained in this Agreement and is not in default in the observance or performance of any of the provisions hereof or, if Parent shall be so in default, specifying all such defaults and events of which he may have knowledge;
(v) within ninety (90) days after the close of each fiscal year, a projection and estimate (to the best of Borrower's ability at the time made) of the financial position and the results for, and as of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower and its Subsidiaries, on a consolidated and, to the extent prepared, consolidating basis, prepared by Borrower, such projections to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of each such annual period, all in reasonable detail certified by Borrower's chief financial officer or vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein;
(vih) promptly after they are sent, made available or filedupon transmission thereof, copies of all reportssuch financial statements, proxy statements statements, notices and financial statements that Borrower sends or makes available reports as it shall send to its stockholders andpublic stockholders, concurrently with filingif any, and copies of all registration statements and all reports that Borrower which it files with the Securities and Exchange Commission, including, but not limited to, 10Q, 10K and 8K reports, SEC (or with any other Governmental Authority where such registration statements and reports may be filedgovernmental body or agency succeeding to the functions of the SEC);
(viii) as soon as possible, and in any event within five (5) days after a Responsible Officer of Borrower has promptly upon obtaining knowledge of (A) the occurrence of a any Default or an Event of Default, or (B) any default or event an Officer's Certificate specifying the nature and period of default as defined in any other evidence of Debt or under any other agreement, indenture or other instrument under which such Debt has been issued, whether or not such Debt is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) existence thereof and such Event of Default, Default or such other default or event of default is not waived on or before two (2) Business Days after it occurs, the statement of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details of such default or event of default, or Default or Event of Default (and if an event under subclause (B) above, a copy of any notice received from the issuer or holder of such Debt) and the what action which Borrower proposes to take with respect thereto;
(viiij) simultaneously immediately upon becoming aware that the holder of any evidence of indebtedness or any security of Borrower or any Subsidiary has given notice or taken any other action with respect to a claimed default or event of default with respect to such indebtedness or security or event which, with the delivery giving of notice or passage of time, or both, would constitute a default with respect to such indebtedness or security, an Officer's Certificate specifying the notice given or action taken by such holder and the nature of the financial statements under SUBPARAGRAPH 5.01(c)(ii) above, a certificate from the president claimed default or event and chief executive officer, the chief financial officer what action Borrower or the vice president and treasurer of Borrower (A) demonstrating compliance Subsidiary is taking or proposes to take with the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and other accounts receivable and a listing and aging of all accounts payablerespect thereto;
(ixk) as soon as availablepromptly after learning thereof, the annual written report any (i) notice that Borrower or any Subsidiary is not in compliance in all material respects with all terms and conditions of auditors pertaining to Borrower's any permit, license or authorization which is required under Environmental Laws, or that Borrower or any Subsidiary is not in compliance in all material respects with all other limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and each timetables contained in any applicable Environmental Laws; (ii) notice of its Subsidiaries' internal controls submitted any past, present or future events, conditions, circumstances, activities, practices, incidents, actions or plans which, with respect to Borrower by Borrower's independent public accountants or any Subsidiary, may materially interfere with or prevent compliance in connection all material respects or continued compliance in all material respects with each annual audit made by such accountantsany applicable Environmental Laws; and (iii) notice or claim of any civil, criminal or administrative action, suit, demand, claim, hearing, notice or demand letter, notice of violation, investigation, or proceeding pending or threatened against Borrower or any Subsidiary relating in any way to any applicable Environmental Laws;
(l) promptly after (i) the occurrence thereof, notice of the institution by any Person of any action, suit or proceeding or any governmental investigation or any arbitration, before any court or arbitrator or any governmental or administrative body, agency, or official, against Borrower, any Subsidiary, or any material property of any of them, in which the amount in controversy is stated to be more than $1,000,000 individually or in the aggregate or, where no amount in controversy is stated, which might, if adversely determined, have a Material Adverse Effect or (ii) the receipt of actual knowledge thereof, notice of the threat of any such action, suit, proceeding, investigation or arbitration, each such notice under this subsection to specify, if known, the amount of damages being claimed or other relief being sought, the nature of the claim, the Person instituting the action, suit, proceeding, investigation or arbitration, and any other significant features of the claim;
(i) promptly after the occurrence thereof with respect to any Plan of any Consolidated Company or any ERISA Affiliate thereof, or any trust established thereunder, notice of (x) a "reportable event" described in Section 4043 of ERISA and the regulations issued from time to time thereunder (other than a "reportable event" not subject to the provisions for 30-day notice to the PBGC under such regulations), or (y) any other event which could subject any Consolidated Company to any tax, penalty or liability under Title I or Title IV of ERISA or Chapter 43 of the Code, or any tax or penalty resulting from a loss of deduction under Sections 162, 404 or 419 of the Code, where any such taxes, penalties or liabilities exceed or could exceed $250,000 in the aggregate;
(ii) promptly after such notice must be provided to the PBGC, or to a Plan participant, beneficiary or alternative payee, any notice required under Section 101(d), 302(f)(4), 303, 307, 4041(b)(1)(A) or 4041(c)(1)(A) of ERISA or under Section 401(a)(29) or 412 of the Code with respect to any Plan of any Consolidated Company or any ERISA Affiliate thereof;
(iii) promptly after receipt, any notice received by any Consolidated Company or any ERISA Affiliate thereof concerning the intent of the PBGC or any other governmental authority to terminate a Plan of such Company or ERISA Affiliate thereof which is subject to Title IV of ERISA, to impose any liability on such Company or ERISA Affiliate under Title IV of ERISA or Chapter 43 of the Code;
(iv) promptly upon the filing thereof with the Internal Revenue Service ("IRS") or the United States Department of Labor ("DOL"), a copy of IRS Form 5500 or annual report for each Plan of any Consolidated Company or ERISA Affiliate thereof which is subject to Title IV of ERISA; and
(v) upon the request of the Agent, (x) true and complete copies of any and all documents, government reports and IRS determination or opinion letters or rulings for any Plan of any Consolidated Company from IRS, PBGC or DOL, (y) any reports filed with the IRS, PBGC or DOL with respect to a Plan of the Consolidated Companies or any ERISA Affiliate thereof, or (z) a current statement of withdrawal liability for each Multiemployer Plan of any Consolidated Company or any ERISA Affiliate thereof;
(n) in the event Davix X. XxXxxxxx xx longer serves as chief executive officer or chairman of the Board of Directors of Borrower, the Borrower shall give the Agent and each Lender at least seven (7) Business Days prior written notice of the appointment of his permanent successor, describing such successor's qualifications for the position in sufficient detail to enable the Required Lenders to determine whether the successor is qualified or otherwise reasonably acceptable to them in accordance with Section 9.01(xiv) hereof;
(o) promptly upon the existence or occurrence thereof, notice of the existence or occurrence of (i) any Contractual Obligation or Requirement of Laws described in Section 6.19, (ii) any failure of any Consolidated Company to hold in full force and effect those material trademarks, service marks, patents, trade names, copyrights, licenses and similar rights necessary for the normal conduct of its business which failure has had or could reasonably be expected to have a Material Adverse Effect, or (iii) any strike, labor dispute, slow down, or work stoppage as described in Section 6.16 hereof which has had or could reasonably be expected to have a Material Adverse Effect;
(p) within thirty (30) days after the close of each fiscal quarter in each fiscal year, a Borrowing Base Certificate of Borrower, appropriately completed by the chief financial officer formation or the vice president and treasurer of Borrower;
(xi) without duplication of CLAUSE (vii) above, upon delivery thereof pursuant to the Subordinated Lender Documents or the Note Purchase Documents, a copy acquisition of any notice given to any Subordinated Lender, Note Purchaser or the Trustee by Borrower or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, a request for payment pursuant to Article 13 of the Indenture;
(xii) prompt written notice of any condition or event which has resulted or might result in (A) a Material Adverse Effect, or (B) a breach of, or noncompliance with, any term, condition or covenant contained herein, or (C) a material breach of, or noncompliance with, any term, condition or covenant of any contract to which Borrower or any Subsidiary is a party or by which it or its property may be bound which contract is material to Borrower and the Subsidiaries as a whole;
(xiii) prompt written notice of any actual or threatened claims, litigation, suits, proceedings or disputes (whether or not purportedly already listed on behalf of Borrower) against or affecting Borrower or any Subsidiary or any of their property which, if adversely determined, would have a Material Adverse Effect (including, without in any way limiting the foregoing, claims, litigation, suits, proceedings or disputes involving monetary amounts in excess of One Million Dollars ($1,000,000) not covered by insurance or self-insuranceSchedule 6.01(c), or any material labor controversy other event resulting in or threatening to result in a strike against Borrower or the creation of any such new Subsidiary, or any proposal by any Governmental Authority to acquire any notice of the material assets or business of Borrower or any Subsidiary, if such strike formation or acquisition would have of such Subsidiary or such occurrence, including a Material Adverse Effectdescription of the assets of such entity, the activities in which it will be engaged, and such other information as the Agent may request with respect thereto;
(xivq) not less than thirty (30) days' days prior written notice of any change in proposed Material Subsidiary Asset Sale, together with a written accounting on the legal name date of Borrowerthe closing of each Material Subsidiary Asset Sale of the Net Proceeds thereof;
(xvr) concurrently with filingwithin ten (10) Business Days after the end of each fiscal quarter of Borrower, copies of IRS Form 5500 filed annually with respect to each Plan of Borrower or any Subsidiary required to file such form, and, promptly after receipt thereof, copies a written accounting of any notice Borrower or any member of the Controlled Group may receive from the PBGC or the Internal Revenue Service with respect to any Plan; PROVIDED, HOWEVER, that this CLAUSE (xv) shall not apply to notices of general application promulgated by the Department of Laborand all Other Asset Sales made during such quarter;
(xvis) promptly upon the occurrence thereof, notice of the transfer of any assets from any Credit Party to any other Consolidated Company that is not a Credit Party (in any transaction or series of related transactions), excluding sales or other transfers of assets in the ordinary course of business (other than the Intercompany Loans), where the Asset Value of such Assets is greater than $50,000;
(t) on the last Business Day of each calendar week, commencing with the calendar week in which the date of this Agreement occurs, cash flow projections for the following two-week period and a written comparison of each prior period's projections to actual results in the form previously submitted by Borrower to the Lenders; provided, however, that as soon as possible, available and in any event commencing on the calendar week beginning March 31, 1997 such cash flow projections shall be given for the following thirteen-week period;
(u) within thirty (30) days after Borrower or any Subsidiary knows or has reason to know that (A) any Reportable Event has occurred the end of each month, commencing with respect to any Planthe month of February, (B) Borrower or any Subsidiary has become obligated to contribute to any Multiemployer Plan; or (C) Borrower or any member of the Controlled Group has incurred withdrawal liability with respect to any Multiemployer Plan1997, a statement from the president and chief executive officer, the chief financial officer or the vice president and treasurer full reconcilement of Borrower setting forth details as to such event and the action which Borrower or the affected Subsidiary proposes to take with respect thereto, together with a copy of the notice of any Reportable Event as described in (A) above as given to the PBGC if a copy of such notice is available to Borrower or the affected Subsidiary;
(xvii) within twenty (20) days of Agent's or any Bank's request therefor: (A) a current list of the names, addresses and outstanding debts of all Account Debtors, and (B) a current list of the names, addresses and outstanding amounts due all creditors of Borrower or any Subsidiary;
(xviii) within (10) days after Agent's or any Bank's request therefor, copies of federal income tax returns filed cash spent by Borrower and its Subsidiaries;
, during such period and for the period from the beginning of such fiscal year to the end of such month, with respect to reserves relating to prior restructuring charges (xix) thirty (30) days prior including charges relating to any change Capitalized Lease Obligations and other written-off equipment), which reconcilement shall be in such detail as is reasonably satisfactory to the Lenders, and in the location of event Borrower fails to deliver such reconcilement for any of month, the Lenders may cause their own financial analyst ( or such other financial analyst as may be selected by the Lenders for such purpose) to prepare the same at the Borrower's places of business or of the establishment of any new, or the discontinuance of any existing place of business, written notice of such change, establishment or discontinuanceexpense; and
(xxv) Such with reasonable promptness, such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or operations, management, business and financial condition (financial or otherwise) of Borrower or Borrower's Subsidiaries, and compliance by Borrower with the terms of this Agreement and the other Credit Documentsits Subsidiaries or any Plan, as the Agent or any Bank Lender may reasonably request in writing from time to time reasonably requesttime.
Appears in 1 contract
Samples: Credit Agreement (Medaphis Corp)
Financial Statements and Notices. Borrower will furnish shall promptly deliver to Agent and each Bankthe Lender:
(i) within thirty (30) days after the close of each calendar month in each fiscal year, copies of the consolidated and, to the extent prepared, consolidating financial statements for such calendar month for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of income and retained earnings (such income statements to include a comparison between projected income for each location at which Borrower and its Subsidiaries conduct business as set forth in the annual financial projections provided under CLAUSE (v) and actual performance for each location at which Borrower and its Subsidiaries conduct business); and (B) balance sheets as of the end of such monthly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustment);
(iia) within forty-five (45) days after the close end of each fiscal quarter in each fiscal yearof Borrower, copies a consolidated and consolidating balance sheet, income statement and statement of the consolidated and, to the extent prepared, consolidating financial statements for such fiscal quarter for cash flow of Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets Subsidiaries as of at the end of such period, setting forth in the case of each quarterly periodstatement in comparative form figures for the corresponding period in the preceding fiscal year, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to changes resulting from normal year-end adjustments, and except that in no event shall the assets, liabilities, financial results or business operations of M-Tron, Spinnaker or their respective subsidiaries be considered in connection with the preparation of such financial statements for the Borrower), but not audited, and, accompanied by a duly completed and executed Officer's Certificate certifying Borrower's compliance with the covenants in this Agreement as of the date of the delivery of such financial statements;
(b) within one hundred twenty (120) days after the end of each fiscal year of Parent, consolidated and consolidating statement of income and cash flows of Parent (including Borrower and its Subsidiaries) for such year, and a balance sheet of Parent (including Borrower and its Subsidiaries) as at the end of such year, setting forth in each case in comparative form corresponding figures from the preceding annual audit, all in reasonable detail, including all footnotes and disclosures, prepared in accordance with GAAP and reasonably satisfactory in scope to the Lender and audited in accordance with generally accepted auditing standards and certified to Parent by independent public accountants of recognized standing selected by Parent and reasonably acceptable to the Lender whose certificate shall be unqualified, which financial statements shall be accompanied by a duly completed and executed Officer's Certificate certifying Borrower's compliance with the covenants in this Agreement as of the date of the delivery of such financial statements;
(c) promptly upon receipt thereof, a copy of each other report submitted to Borrower by its independent public accountants in connection with any annual, interim or special audit adjustmentmade by them of the books of Borrower (including, without limitation any management report prepared in connection with such accountants' annual audit of Borrower);
(iiid) within ninety (90) days after the close of each fiscal year, a copy of the consolidated and, to the extent prepared, consolidating financial statements for Borrower and its Subsidiaries for such fiscal year, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of such fiscal year; such financial statements to be audited by independent certified public accountant acceptable to the Required Banks, to contain the unqualified opinion of such accountants that such statements have been presented fairly in all material respects in accordance with GAAP, together with a certificate of such accounting firm to the Agent and the Banks:
(1) stating that in the course of the regular examination of the business of Borrower and the Subsidiaries, which examination was conducted by such accounting firm in accordance with GAAP, nothing has come to the attention of such accounting firm which would cause them to believe that a Default or Event of Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default or an Event of Default has occurred and is continuing, a statement as to the nature thereof, (2) setting forth in reasonable detail the calculations made during such period and as of the end of such period in determining compliance with the financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND (3) stating that Agent and the Banks may rely thereon;
(iv) contemporaneously with each monthly, quarterly and year-end financial report required by the foregoing CLAUSES (i), (ii) AND (iii), a certificate of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Parent stating that he or she has individually reviewed the provisions of this Agreement and that a review of the activities of Parent and the Subsidiaries during such monthly, quarterly and yearly period, as the case may be, has been made by him or her or under his or her supervision, with a view to determining whether Parent has fulfilled all its obligations under this Agreement, and that Parent has observed and performed each undertaking contained in this Agreement and is not in default in the observance or performance of any of the provisions hereof or, if Parent shall be so in default, specifying all such defaults and events of which he may have knowledge;
(v) within ninety (90) days after the close of each fiscal year, a projection and estimate (to the best of Borrower's ability at the time made) of the financial position and the results for, and as of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower and its Subsidiaries, on a consolidated and, to the extent prepared, consolidating basis, prepared by Borrower, such projections to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of each such annual period, all in reasonable detail certified by Borrower's chief financial officer or vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best promptly upon obtaining knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein;
(vi) promptly after they are sent, made available or filed, copies of all reports, proxy statements and financial statements that Borrower sends or makes available to its stockholders and, concurrently with filing, copies of all registration statements and reports that Borrower files with the Securities and Exchange Commission, including, but not limited to, 10Q, 10K and 8K reports, or with any other Governmental Authority where such registration statements and reports may be filed;
(vii) as soon as possible, and in any event within five (5) days after a Responsible Officer of Borrower has knowledge of (A) the occurrence of a Default or an Event of Default, or (B) any default or event an Officer's Certificate specifying the nature and period of default as defined in any other evidence of Debt or under any other agreement, indenture or other instrument under which such Debt has been issued, whether or not such Debt is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) existence thereof and such Event of Default, Default or such other default or event of default is not waived on or before two (2) Business Days after it occurs, what action the statement of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details of such default or event of default, or Default or Event of Default (and if an event under subclause (B) above, a copy of any notice received from the issuer or holder of such Debt) and the action which Borrower proposes to take with respect thereto;
(viiie) simultaneously with immediately upon becoming aware that the delivery holder of the financial statements under SUBPARAGRAPH 5.01(c)(ii) above, a certificate from the president and chief executive officer, the chief financial officer any evidence of indebtedness or the vice president and treasurer any security of Borrower (A) demonstrating compliance with the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and has given notice or taken any other accounts receivable and a listing and aging of all accounts payable;
(ix) as soon as available, the annual written report of auditors pertaining to Borrower's and each of its Subsidiaries' internal controls submitted to Borrower by Borrower's independent public accountants in connection with each annual audit made by such accountants;
(x) within thirty (30) days after the close of each fiscal quarter in each fiscal year, a Borrowing Base Certificate of Borrower, appropriately completed by the chief financial officer or the vice president and treasurer of Borrower;
(xi) without duplication of CLAUSE (vii) above, upon delivery thereof pursuant to the Subordinated Lender Documents or the Note Purchase Documents, a copy of any notice given to any Subordinated Lender, Note Purchaser or the Trustee by Borrower or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, a request for payment pursuant to Article 13 of the Indenture;
(xii) prompt written notice of any condition or event which has resulted or might result in (A) a Material Adverse Effect, or (B) a breach of, or noncompliance with, any term, condition or covenant contained herein, or (C) a material breach of, or noncompliance with, any term, condition or covenant of any contract to which Borrower or any Subsidiary is a party or by which it or its property may be bound which contract is material to Borrower and the Subsidiaries as a whole;
(xiii) prompt written notice of any actual or threatened claims, litigation, suits, proceedings or disputes (whether or not purportedly on behalf of Borrower) against or affecting Borrower or any Subsidiary or any of their property which, if adversely determined, would have a Material Adverse Effect (including, without in any way limiting the foregoing, claims, litigation, suits, proceedings or disputes involving monetary amounts in excess of One Million Dollars ($1,000,000) not covered by insurance or self-insurance), or any material labor controversy resulting in or threatening to result in a strike against Borrower or any Subsidiary, or any proposal by any Governmental Authority to acquire any of the material assets or business of Borrower or any Subsidiary, if such strike or acquisition would have a Material Adverse Effect;
(xiv) thirty (30) days' prior written notice of any change in the legal name of Borrower;
(xv) concurrently with filing, copies of IRS Form 5500 filed annually action with respect to each Plan a claimed default or event of Borrower or any Subsidiary required to file such form, and, promptly after receipt thereof, copies of any notice Borrower or any member of the Controlled Group may receive from the PBGC or the Internal Revenue Service default with respect to any Plan; PROVIDEDsuch indebtedness or security or event which, HOWEVERwith the giving of notice or passage of time, that this CLAUSE (xv) shall not apply to notices of general application promulgated by the Department of Labor;
(xvi) as soon as possibleor both, and in any event within thirty (30) days after Borrower or any Subsidiary knows or has reason to know that (A) any Reportable Event has occurred would constitute a default with respect to any Plansuch indebtedness or security, (B) Borrower an Officer's Certificate specifying the notice given or any Subsidiary has become obligated to contribute to any Multiemployer Plan; or (C) Borrower or any member action taken by such holder and the nature of the Controlled Group has incurred withdrawal liability with respect to any Multiemployer Plan, a statement from the president and chief executive officer, the chief financial officer claimed default or the vice president and treasurer of Borrower setting forth details as to such event and the what action which Borrower is taking or the affected Subsidiary proposes to take with respect thereto, together with a copy provided that in each and every case noted above the aggregate outstanding principal balance of the indebtedness or security involved (or all such indebtedness or securities combined) must equal or exceed $50,000;
(f) promptly after (i) the occurrence thereof, notice of the institution by any Person of any action, suit or proceeding or any governmental investigation or any arbitration, before any court or arbitrator or any governmental or administrative body, agency, or official, against Borrower, or any material property of Borrower, in which the amount in controversy is stated to be more than $50,000 individually or in the aggregate or, where no amount in controversy is stated, which might, if adversely determined, have a Material Adverse Effect or (ii) the receipt of actual knowledge thereof, notice of the threat of any such action, suit, proceeding, investigation or arbitration, each such notice under this subsection to specify, if known, the amount of damages being claimed or other relief being sought, the nature of the claim, the Person instituting the action, suit, proceeding, investigation or arbitration, and any other significant features of the claim;
(g) promptly after learning thereof, notice of the occurrence of any Reportable Event as described or any other act or condition arising in (A) above as given to connection with any Plan which Borrower believes might constitute grounds for the termination thereof by the PBGC if or for the appointment by any appropriate United States district court of a copy of trustee to administer such notice is available to Borrower or the affected SubsidiaryPlan;
(xviih) within twenty prompt notice in writing of the occurrence of any of the following: (20i) days the Borrower begins or consents in any manner to any proceeding or arrangement for its liquidation in whole or in part or to any other proceeding or arrangement whereby any of Agent's its assets are subject generally to the payments of its liabilities or by any receiver, trustee, liquidator or the like is appointed for it or any Bank's request therefor: substantial part of its assets (A) including without limitation the filing by the Borrower of a current list petition for appointment as a debtor-in-possession under Title 11 of the names, addresses and outstanding debts of all Account Debtors, and U.S. Code); (Bii) a current list of the names, addresses and outstanding amounts due all creditors of Borrower fails to obtain the dismissal or any Subsidiary;
(xviii) stay on appeal within (10) days after Agent's or any Bank's request therefor, copies of federal income tax returns filed by Borrower and its Subsidiaries;
(xix) thirty (30) calendar days prior to any change in of the location commencement of any proceeding arrangement referred to in (i) above; (iii) the Borrower begins any other procedure for the relief of Borrower's places of business financially distressed or of the establishment of any newinsolvent debtors, or the discontinuance of any existing place of businesssuch procedure has been commenced against it, written notice of such change, establishment whether voluntarily or discontinuance; and
(xx) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Borrower or Borrower's Subsidiariesinvoluntarily, and compliance by Borrower with such procedure has not been effectively terminated, dismissed or stayed within thirty (30) calendar days after the terms of this Agreement and the other Credit Documents, as Agent or any Bank may from time to time reasonably request.commencement thereof; or
Appears in 1 contract
Samples: Credit Agreement (Lynch Corp)
Financial Statements and Notices. Borrower will shall furnish to Agent and each Bank:
(ia) as soon as practicable and, in any event, within thirty fifty (3050) days after the close of each calendar month in of the first three (3) fiscal quarters of each fiscal year, copies year of the Borrower:
(i) a consolidated and, to the extent prepared, consolidating financial statements statement of stockholders' equity and a consolidated statement of cash flows of Borrower and each of its Subsidiaries for such calendar month for quarterly period; (ii) consolidated and consolidating (based upon business segments) income statements of Borrower and its Subsidiaries, prepared by Borrower, each to include: S u b sidiaries for such quarterly period; and (Aiii) statements consolidated and consolidating (based upon business segments) balance sheets of income and retained earnings (such income statements to include a comparison between projected income for each location at which Borrower and its Subsidiaries conduct business as set forth in the annual financial projections provided under CLAUSE (v) and actual performance for each location at which Borrower and its Subsidiaries conduct business); and (B) balance sheets as of the end of such monthly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustment);
(ii) within forty-five (45) days after the close of each fiscal quarter in each fiscal year, copies of the consolidated and, to the extent prepared, consolidating financial statements for such fiscal quarter for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of such quarterly period, each setting forth in comparative form, if applicable, the corresponding figures for the corresponding periods of the previous fiscal year, all in reasonable detail, and certified by Borrower's president and chief executive officer, the chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and of Borrower to have been prepared in accordance with GAAP (GAAP, consistently applied, subject to normal year-end audit adjustment)adjustments;
(iiib) as soon as practicable and, in any event, within ninety ninety-five (9095) days after the close of each fiscal yearyear of Borrower, a copy of the annual audited report for such year for Borrower and its Subsidiaries, including therein: (i) a consolidated and, to the extent prepared, consolidating financial statements for statement of stockholders' equity and a consolidated statement of cash flows of Borrower and its Subsidiaries for such fiscal year, each to include: ; (Aii) consolidated and unaudited consolidating (based upon business segments) income statements of cash flows; (B) statements of income Borrower and retained earningsits Subsidiaries for such fiscal year; and (Ciii) consolidated and unaudited consolidating (based upon business segments) balance sheets of Borrower and its Subsidiaries as of the end of such fiscal year, each setting forth in comparative form, if applicable, the corresponding figures for the previous year, all in reasonable detail; such financial statements the consolidated income statement and balance sheet to be audited by independent independent, nationally recognized, certified public accountant acceptable to accountants, and certified, without a "going concern" qualification or other qualification or exception of similar gravity or any qualification arising out of the Required Banksscope of the audit (but not arising out of changes in financial accounting standards), to contain the unqualified opinion of by such accountants that such statements to have been presented fairly in all material respects prepared in accordance with GAAP, consistently applied, together with a certificate letter of such accounting firm to the Agent and the Banks:
(1) Agent, stating that in the course of the regular examination its audit of the business of Borrower and the Subsidiaries, which examination its Subsidiaries was conducted by such accounting firm in accordance with GAAP, nothing has come to the attention of such accounting firm which would cause them to believe that a Default or Event of Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default or an Event of Default has occurred and is continuing, a statement as to the nature thereof, (2) setting forth in reasonable detail the calculations made during such period and as of the end of such period in determining compliance with the financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND (3) stating that Agent and the Banks may rely thereongenerally accepted auditing standards;
(ivc) contemporaneously c o ntemporaneously with each monthly, quarterly and year-end financial report required by the foregoing CLAUSES subsections (i), a) and (ii) AND (iiib), a certificate of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Parent Borrower stating that he or she has individually reviewed the provisions of this Agreement Agreement, the Notes, and the Loan Documents, and that a review of the activities of Parent Borrower and the its Subsidiaries during such monthly, year or quarterly and yearly period, as the case may be, has been made by him or her or under his or her such individual's supervision, with a view to determining whether Parent has Borrower and its Subsidiaries have fulfilled all its of their respective obligations under this Agreement, the Notes, and the Loan Documents, and that Parent has Borrower and its Subsidiaries have observed and performed each undertaking contained in this Agreement Agreement, the Notes, and the Loan Documents, to the extent that each is a party thereto, and Borrower and its Subsidiaries are not in default in the observance or performance of any of the provisions hereof oror thereof, or if Parent Borrower or any of its Subsidiaries shall be so in default, specifying all such defaults and events of which he such individual may have knowledgeknowledge or belief;
(v) within ninety (90) days after the close of each fiscal year, a projection and estimate (to the best of Borrower's ability at the time made) of the financial position and the results for, and as of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower and its Subsidiaries, on a consolidated and, to the extent prepared, consolidating basis, prepared by Borrower, such projections to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of each such annual period, all in reasonable detail certified by Borrower's chief financial officer or vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein;
(vid) promptly after they are sent, made sending or making available or filedfiling of the same, copies of all reports, proxy statements statements, and financial statements that Borrower or any of its Subsidiaries sends or makes available to its stockholders andthe shareholders of Borrower and all regular and periodic reports and all filings pursuant to Sections 13 and 15(d) of the Exchange Act and registration statements that such Persons file with the SEC, concurrently with filing, copies and of all registration press releases and other statements made available generally by Borrower and reports its Subsidiaries to the public concerning material developments in their business or any condition or event that would be required to be disclosed in a current report filed by Borrower files or its Subsidiaries with the Securities SEC on Form 8-K (Items 1, 2, 3, 4, and Exchange Commission, including, but not limited to, 10Q, 10K and 8K reports, or with any other Governmental Authority where 6 of such registration statements and reports may be filedForm as in effect on the date hereof);
(viie) notice, as soon as possiblepossible and, and in any event event, within five (5) days Domestic Business Days after a any Responsible Officer of Borrower has knowledge of of: (Ai) the occurrence of a any Event of Default or an any Unmatured Event of Default, ; or (Bii) any default or event of default (subject to any applicable notice or grace period) as defined in any other evidence of Debt of Borrower or any of its Subsidiaries in excess of Two Million Dollars ($2,000,000) or under any other agreement, indenture indenture, or other instrument under which such Debt has been issued, irrespective of whether or not such Debt is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) and such Event of Default, Default accelerated or such other default or event of default is not waived on or before two (2) Business Days after it occurswaived. In either event, the Borrower shall also supply Banks with a statement of the president and chief executive officer, the from Borrower's chief financial officer or the vice president and treasurer of Borrower setting forth the details of such default or event of default, or Default or Event of Default (and if an event under subclause (B) above, a copy of any notice received from the issuer or holder of such Debt) and the action which Borrower proposes to take with respect thereto;
(viii) simultaneously with the delivery of the financial statements under SUBPARAGRAPH 5.01(c)(ii) above, a certificate from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower (A) demonstrating compliance with the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and other accounts receivable and a listing and aging of all accounts payable;
(ixf) as soon as availablepossible and, the annual written report of auditors pertaining to Borrower's and each of its Subsidiaries' internal controls submitted to Borrower by Borrower's independent public accountants in connection with each annual audit made by such accountants;
any event, within fifty (x) within thirty (3050) days after the close end of each fiscal quarter of the first three (3) quarterly accounting periods of Borrower in each fiscal year, a Borrowing Base Certificate year and within ninety-five (95) days after the end of each of Borrower's fiscal years, appropriately completed by the chief financial officer or the vice president and treasurer of an Officer's Compliance Certificate with respect to Borrower;
(xig) without duplication upon the request of CLAUSE the Majority Banks, together with the delivery for any fiscal year of consolidated financial statements of Borrower and its Subsidiaries pursuant to clause (viib) above, upon delivery thereof pursuant to if the Subordinated Lender Documents Majority Banks believe, in good faith, that there may be Hazardous Waste or Hazardous Substances present on any of the Note Purchase Documentsreal property constituting a portion of the Collateral that would have a Material Adverse Effect, a copy written report by an expert of any notice given recognized standing evidencing a complete and thorough inspection of all such real property, including a geohydrological survey of soil or subsurface conditions as well as other tests to any Subordinated Lenderdetect the presence, Note Purchaser if any, of Hazardous Waste or the Trustee by Borrower or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, a request for payment pursuant to Article 13 of the IndentureHazardous Substances;
(xiih) prompt written notice of any condition or event which has resulted or might reasonably may be expected to result in (Ai) a Material Adverse Effect, or ; (Bii) a breach of, of or noncompliance with, with any term, condition or covenant contained hereinin this Agreement, the Notes, or the Loan Documents; (Ciii) a material breach of, of or noncompliance with, with any material term, condition condition, or covenant of any material contract to which Borrower or any Subsidiary of its Subsidiaries is a party or by which it they or its property their properties may be bound which contract is material to bound; or (iv) a transfer, sale, or other disposition of Assets, an incurrence of Debt, or any other transaction permitted under Article 6 hereof only upon c o mpliance by Borrower and its Subsidiaries with the Subsidiaries as a wholeprovisions of Section 5.11 hereof to effect and continue the transactions contemplated by this Agreement or the Loan Documents;
(xiiii) prompt written notice of any actual or threatened claims, litigationproceedings, suits, proceedings or disputes (whether against, or not purportedly on behalf to the knowledge or belief of Borrower) against Borrower threatened, or affecting Borrower or any Subsidiary or any of their property whichits Subsidiaries that, if adversely determined, would have a reasonable likelihood of having a Material Adverse Effect (including, without in any way limiting the foregoing, claims, litigationproceedings, suits, proceedings or disputes involving monetary amounts in excess of One Five Million Dollars ($1,000,000) not covered by 5,000,000), or more, in excess of any insurance or self-insurancecoverage therefor, shall be deemed to be material for purposes of this clause (i)), or any material labor controversy of which Borrower has knowledge resulting in or threatening or, in the reasonable judgment of the management of Borrower, that is reasonably likely, imminently, to result in a strike against Borrower or any Subsidiaryof its Subsidiaries that would threaten to cease operations at any one or more of the Cement Plants, or any proposal of which Borrower has knowledge by any Governmental Authority public authority to acquire any of the material assets Assets or business of Borrower or any Subsidiary, if such strike or acquisition would have a Material Adverse Effectof its Subsidiaries;
(xivj) thirty (30) days' prior promptly, upon becoming aware of the occurrence of any of the following events, a written notice of any change in specifying the legal name of Borrower;
(xv) concurrently with filing, copies of IRS Form 5500 filed annually with respect to each Plan of Borrower or any Subsidiary required to file such formnature thereof, and, promptly after receipt thereofwhen known, copies any action taken or threatened by the Internal Revenue Service, D e p a r tment of any notice Labor, PBGC, or other party with respect thereto: (i) Reportable Event; (ii) "prohibited transaction," as such term is defined in Sect.4975 of the Code, which prohibited transaction could subject Borrower or any member of the Controlled Group may receive from to a material civil penalty assessed pursuant to Sect.502(i)of ERISA or a material tax imposed by Section 4975 of the PBGC Code in connection with any of Borrower's or any of its ERISA Affiliates' Pension Plans or any trust created thereunder; (iii) failure to timely pay the required annual payment or the Internal Revenue Service with respect to full amount of a required installment for any Plan; PROVIDED, HOWEVER, that this CLAUSE (xv) shall not apply to notices of general application promulgated Pension Plan in any plan year by the Department due date as required under Sect.412 of Laborthe Code; (iv)the liability for any additional premium that must be paid under Section 4006(a)(3) of ERISA; or (v)any Lien on the Assets of any member of the Controlled Group under the Pension Protection Act;
(xvik) as soon as possiblepromptly, and in any event within thirty copies of:
(30i) days after Borrower or any Subsidiary knows or has reason to know that (A) any Reportable Event has occurred with respect to any Plan, (B) Borrower or any Subsidiary has become obligated to contribute to any Multiemployer Plan; or (C) all notices received by Borrower or any member of the Controlled Group has incurred withdrawal of the PBGC's (or a foreign country's) intent to terminate any of Borrower's or any of its ERISA Affiliates' Pension Plans or to have a trustee appointed to administer any of Borrower's or any of its ERISA Affiliates' Pension Plans, or of the PBCG's demand for payment of liability under Section 4062, 4063, or 4064 of ERISA; ii) at the request of Agent or any Bank, each annual report (IRS form 5500 series or similar series under the applicable laws of any foreign country and all accompanying schedules), the most recent actuarial reports, the most recent financial information concerning the financial status of each of Borrower's and its ERISA Affiliates' Pension Plans or Multiemployer Plans, and schedules showing the amounts contributed to each of Borrower's and any of its ERISA Affiliates' Pension Plans or Multiemployer Plans by or on behalf of Borrower or its ERISA Affiliates in which any of their personnel participate or from which such personnel may derive a benefit, and each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by Borrower or any member of the Controlled Group with the Internal Revenue Service with respect to each Pension Plan; and (iii) all notices received by Borrower or any Multiemployer Planmember of the Controlled Group concerning the imposition or amount of withdrawal liability pursuant to Sect.4202 of ERISA or similar liability under the laws of any foreign country; (iv)all notices required to be sent to employees for failure to make a required installment or other payment required to meet the minimum funding standard under Section 302 of ERISA; and (v) all notifications required to be made to the PBGC for failure to make a required installment or other payment under Section 412(n) of the Code;
(l) promptly after the end of each fiscal year of Borrower, but in any event on or before ninety-five (95) days after the end of each such fiscal year, consolidating plan and financial forecasts, including a balance sheet, income statement, and cash flow projections covering proposed fundings, repayments, additional advances, investments, and other cash receipts and disbursements for the forthcoming year, as customarily prepared by the management of Borrower for internal use and any other similar reports customarily prepared by management of Borrower pursuant to any provisions of any instrument or documents relating to any Debt of Borrower or any of its Subsidiaries;
(m) promptly upon becoming aware of any Person's seeking to obtain or threatening to seek to obtain a decree or order for relief with respect to Borrower or any of its Subsidiaries in an involuntary case under any applicable bankruptcy, insolvency, or other similar law now or hereafter in effect, a statement from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details as to such event and the written notice thereof specifying what action which Borrower or the affected any such Subsidiary is taking or proposes to take with respect thereto, together with a copy of the notice of any Reportable Event as described in (A) above as given to the PBGC if a copy of such notice is available to Borrower or the affected Subsidiary;
(xviin) within twenty (20) days of Agent's or any Bank's request therefor: (A) a current list of the namespromptly, addresses and outstanding debts copies of all Account Debtors, and (B) a current list material amendments to the articles of the names, addresses and outstanding amounts due all creditors incorporation of Borrower or any SubsidiaryBorrower;
(xviiio) within contemporaneously with each year-end financial report required by subsection (10b) days after Agent's above, a certificate signed by the chief financial officer or any Bank's request therefor, copies treasurer of federal income tax returns filed by Borrower separately identifying and describing all Contingent Obligations of Borrower and its SubsidiariesSubsidiaries (other than those provided for under Section 6.4(b));
(xixp) thirty (30) days prior to any change in as soon as practicable under the location of any of Borrower's places of business or of the establishment of any new, or the discontinuance of any existing place of businesscircumstances, written notice of such change, establishment any proposed Permitted Acquisition involving consideration of Ten Million Dollars ($10,000,000) or discontinuancemore; and
(xxq) Such with reasonable promptness, such other instruments, agreements, certificates, opinions, statements, documents information and information relating data with respect to the operations or condition (financial or otherwise) of Borrower or Borrower's Subsidiaries, and compliance by Borrower with the terms any of this Agreement and the other Credit Documents, its Subsidiaries as Agent or any Bank may from time to time reasonably requestmay be requested by any of the Banks.
Appears in 1 contract
Samples: Credit Agreement (Southdown Inc)
Financial Statements and Notices. Borrower will furnish to Agent and each Bank:
(i) within thirty (30) days after the close of each calendar month in each fiscal year, copies of the consolidated and, shall promptly -------------------------------- deliver to the extent prepared, consolidating financial statements for such calendar month for Borrower and its Subsidiaries, prepared by Borrower, each to includeLender: (A) statements of income and retained earnings (such income statements to include a comparison between projected income for each location at which Borrower and its Subsidiaries conduct business as set forth in the annual financial projections provided under CLAUSE (v) and actual performance for each location at which Borrower and its Subsidiaries conduct business); and (B) balance sheets as of the end of such monthly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustment);
(iia) within forty-five (45) days after the close end of each fiscal quarter in each fiscal yearof Borrower, copies a consolidated balance sheet of the consolidated and, to the extent prepared, consolidating financial statements for such fiscal quarter for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets consolidated Subsidiaries as of at the end of such period, setting forth in the case of each quarterly periodstatement in comparative form figures for the corresponding period in the preceding fiscal year, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-changes resulting from normal year- end audit adjustmentadjustments);
, but not audited, and, if requested by Lender, accompanied by a duly completed and executed Officer's Certificate certifying Borrower's compliance with the financial and other covenants in this Agreement as of the date of the delivery of such financial statements; (iiib) within ninety (90) days after the close end of each fiscal year of Borrower, consolidated and consolidating statements of income and cash flows of Borrower and its consolidated Subsidiaries for such year, and consolidated and consolidating balance sheets of Borrower and its consolidated Subsidiaries as at the end of such year, setting forth in each case in comparative form corresponding figures from the preceding annual audit, all in reasonable detail, prepared in accordance with GAAP and reasonably satisfactory in scope to the Lender and audited in accordance with generally accepted auditing standards and certified to Borrower by independent public accountants of recognized standing selected by Borrower and reasonably acceptable to the Lender whose certificate shall be unqualified, which financial statements shall be accompanied by a duly completed and executed Officer's Certificate certifying Borrower's compliance with the financial and other covenants in this Agreement as of the date of the delivery of such financial statements; (c) promptly upon receipt thereof, a copy of each other report submitted to Borrower or any of its consolidated Subsidiaries by its independent public accountants in connection with any annual, interim or special audit made by them of the consolidated andbooks of Borrower or any such Subsidiary (including, to the extent preparedwithout limitation, consolidating financial statements for any management report prepared in connection with such accountants' annual audit of Borrower and its Subsidiaries for such fiscal year, each to include: (A) statements of cash flowsconsolidated Subsidiaries); (B) statements of income and retained earnings; and (C) balance sheets as of the end of such fiscal year; such financial statements to be audited by independent certified public accountant acceptable to the Required Banks, to contain the unqualified opinion of such accountants that such statements have been presented fairly in all material respects in accordance with GAAP, together with a certificate of such accounting firm to the Agent and the Banks:
(1) stating that in the course of the regular examination of the business of Borrower and the Subsidiaries, which examination was conducted by such accounting firm in accordance with GAAP, nothing has come to the attention of such accounting firm which would cause them to believe that a Default or Event of Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default or an Event of Default has occurred and is continuing, a statement as to the nature thereof, (2) setting forth in reasonable detail the calculations made during such period and as of the end of such period in determining compliance with the financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND (3) stating that Agent and the Banks may rely thereon;
(iv) contemporaneously with each monthly, quarterly and year-end financial report required by the foregoing CLAUSES (i), (ii) AND (iii), a certificate of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Parent stating that he or she has individually reviewed the provisions of this Agreement and that a review of the activities of Parent and the Subsidiaries during such monthly, quarterly and yearly period, as the case may be, has been made by him or her or under his or her supervision, with a view to determining whether Parent has fulfilled all its obligations under this Agreement, and that Parent has observed and performed each undertaking contained in this Agreement and is not in default in the observance or performance of any of the provisions hereof or, if Parent shall be so in default, specifying all such defaults and events of which he may have knowledge;
(v) within ninety (90) days after the close of each fiscal year, a projection and estimate (to the best of Borrower's ability at the time made) of the financial position and the results for, and as of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower and its Subsidiaries, on a consolidated and, to the extent prepared, consolidating basis, prepared by Borrower, such projections to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of each such annual period, all in reasonable detail certified by Borrower's chief financial officer or vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein;
(vid) promptly after they are sent, made available or filedupon transmission thereof, copies of all reportssuch financial statements, proxy statements statements, notices and financial statements that reports as Borrower sends or makes available shall send to its stockholders andpublic stockholders, concurrently with filingif any, and copies of all registration statements and all reports that which Borrower files with the Securities and Exchange Commission, including, but not limited to, 10Q, 10K and 8K reports, SEC (or with any other Governmental Authority where such registration statements and reports may be filed;
governmental body or agency succeeding to the functions of the SEC); (viie) as soon as possible, and in any event within five (5) days after a Responsible Officer of Borrower has promptly upon obtaining knowledge of (A) the occurrence of a Default or an Event of Default, an Officer's Certificate specifying the nature and period of existence thereof and what action the Borrower propose to take with respect thereto; (f) immediately upon becoming aware that the holder of any evidence of indebtedness or (B) any security of any Credit Party has given notice or taken any other action with respect to a claimed default or event of default as defined in any other evidence with respect to such indebtedness or security or event which, with the giving of Debt notice or under any other agreementpassage of time, indenture or other instrument under which both, would constitute a default with respect to such Debt has been issuedindebtedness or security, whether an Officer's Certificate specifying the notice given or not action taken by such Debt is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) holder and such Event the nature of Default, Default or such other the claimed default or event of default and what action such Credit Party is not waived on taking or before two (2) Business Days after it occurs, the statement of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details of such default or event of default, or Default or Event of Default (and if an event under subclause (B) above, a copy of any notice received from the issuer or holder of such Debt) and the action which Borrower proposes to take with respect thereto;
(viii) simultaneously with the delivery of the financial statements under SUBPARAGRAPH 5.01(c)(ii) above, a certificate from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower (A) demonstrating compliance with the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and other accounts receivable and a listing and aging of all accounts payable;
(ix) as soon as available, the annual written report of auditors pertaining to Borrower's and each of its Subsidiaries' internal controls submitted to Borrower by Borrower's independent public accountants in connection with each annual audit made by such accountants;
(x) within thirty (30) days after the close of each fiscal quarter in each fiscal year, a Borrowing Base Certificate of Borrower, appropriately completed by the chief financial officer or the vice president and treasurer of Borrower;
(xi) without duplication of CLAUSE (vii) above, upon delivery thereof pursuant to the Subordinated Lender Documents or the Note Purchase Documents, a copy of any notice given to any Subordinated Lender, Note Purchaser or the Trustee by Borrower or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, a request for payment pursuant to Article 13 of the Indenture;
(xii) prompt written notice of any condition or event which has resulted or might result in (A) a Material Adverse Effect, or (B) a breach of, or noncompliance with, any term, condition or covenant contained herein, or (C) a material breach of, or noncompliance with, any term, condition or covenant of any contract to which Borrower or any Subsidiary is a party or by which it or its property may be bound which contract is material to Borrower and the Subsidiaries as a whole;
(xiii) prompt written notice of any actual or threatened claims, litigation, suits, proceedings or disputes (whether or not purportedly on behalf of Borrower) against or affecting Borrower or any Subsidiary or any of their property which, if adversely determined, would have a Material Adverse Effect (including, without in any way limiting the foregoing, claims, litigation, suits, proceedings or disputes involving monetary amounts in excess of One Million Dollars ($1,000,000) not covered by insurance or self-insurance), or any material labor controversy resulting in or threatening to result in a strike against Borrower or any Subsidiary, or any proposal by any Governmental Authority to acquire any of the material assets or business of Borrower or any Subsidiary, if such strike or acquisition would have a Material Adverse Effect;
(xiv) thirty (30) days' prior written notice of any change in the legal name of Borrower;
(xv) concurrently with filing, copies of IRS Form 5500 filed annually with respect to each Plan of Borrower or any Subsidiary required to file such form, and, promptly after receipt thereof, copies of any notice Borrower or any member of the Controlled Group may receive from the PBGC or the Internal Revenue Service with respect to any Plan; PROVIDED, HOWEVER, that this CLAUSE (xv) shall not apply to notices of general application promulgated by the Department of Labor;
(xvi) as soon as possible, and in any event within thirty (30) days after Borrower or any Subsidiary knows or has reason to know that (A) any Reportable Event has occurred with respect to any Plan, (B) Borrower or any Subsidiary has become obligated to contribute to any Multiemployer Plan; or (C) Borrower or any member of the Controlled Group has incurred withdrawal liability with respect to any Multiemployer Plan, a statement from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details as to such event and the action which Borrower or the affected Subsidiary proposes to take with respect thereto, together with a copy provided that in each and -------- every case noted above the aggregate outstanding principal balance of the indebtedness or security involved (or all such indebtedness or securities combined) must equal or exceed $50,000; (g) promptly after (i) the occurrence thereof, notice of the institution by any Reportable Event as described Person of any action, suit or proceeding or any governmental investigation or any arbitration, before any court or arbitrator or any governmental or administrative body, agency, or official, against any Credit Party, or any material property of any Credit Party, in which the amount in controversy is stated to be more than $50,000 individually or in the aggregate or, where no amount in controversy is stated, which might, if adversely determined, have a Material Adverse Effect or (Aii) above as given to the PBGC if a copy receipt of actual knowledge thereof, notice of the threat of any such action, suit, proceeding, investigation or arbitration, each such notice is available under this subsection to Borrower specify, if known, the amount of damages being claimed or other relief being sought, the affected Subsidiary;
(xvii) within twenty (20) days of Agent's or any Bank's request therefor: (A) a current list nature of the namesclaim, addresses and outstanding debts of all Account Debtorsthe Person instituting the action, suit, proceeding, investigation or arbitration, and (B) a current list any other significant features of the namesclaim; and (h) with reasonable promptness, addresses and outstanding amounts due all creditors of Borrower or any Subsidiary;
(xviii) within (10) days after Agent's or any Bank's request therefor, copies of federal income tax returns filed by Borrower and its Subsidiaries;
(xix) thirty (30) days prior to any change in the location of any of Borrower's places of business or of the establishment of any new, or the discontinuance of any existing place of business, written notice of such change, establishment or discontinuance; and
(xx) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations operations, management, business, properties or financial condition of any Credit Party, Xxxxxxx (financial or otherwise) of Borrower or Borrower's Subsidiariesbut only so long as he is a Guarantor), and compliance by Borrower with the terms of this Agreement and the other Credit Documents, as Agent or any Bank Plan as the Lender may reasonably request in writing from time to time reasonably requesttime.
Appears in 1 contract
Samples: Loan Agreement (Intercept Group Inc)
Financial Statements and Notices. Borrower will furnish shall promptly deliver to Agent and each Bank:
(ia) within thirty (30) 45 days after the close end of each calendar month in of the first three quarters of each fiscal year, copies of the interim consolidated and, to the extent prepared, consolidating financial statements for such calendar month for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of income and retained earnings (such income statements to include a comparison between projected income for each location at which cash flow of Borrower and its Subsidiaries conduct business as set forth in for the annual financial projections provided under CLAUSE (v) period from the beginning of such fiscal year to the end of such period and actual performance for each location at which a consolidated balance sheet of Borrower and its Subsidiaries conduct business); and (B) balance sheets as of at the end of such monthly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustment)adjustments and the absence of footnotes) and certified by the president or chief financial officer of Borrower, together with a copy of the Report of Condition and the Report of Income and Dividends of the Bank Subsidiary and of each other Subsidiary which is a bank or other depository institution as filed by such Subsidiary with the Federal Deposit Insurance Corporation, the Federal Reserve Bank of Atlanta, or its other primary federal bank regulatory agency;
(iib) within forty-five (45) 120 days after the close end of each fiscal quarter in each fiscal year, copies of the annual consolidated and, to the extent prepared, consolidating financial statements for such fiscal quarter for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; statements of cash flows of Borrower and (C) its Subsidiaries for such year, and consolidated balance sheets of Borrower and its Subsidiaries as of at the end of such quarterly periodyear, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject and reasonably satisfactory in scope to year-end audit adjustment);
(iii) within ninety (90) days after the close of each fiscal year, a copy of the consolidated and, Bank and audited in accordance with generally accepted auditing standards and certified to the extent prepared, consolidating financial statements for Borrower and its Subsidiaries for such fiscal year, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of such fiscal year; such financial statements to be audited by independent certified public accountant acceptable to the Required Banks, to contain the unqualified accountants of recognized standing selected by Borrower whose opinion of such accountants that such statements have been presented fairly in all material respects in accordance with GAAP, together with a certificate of such accounting firm to the Agent and the Banks:
(1) stating that in the course of the regular examination of the business of Borrower and the Subsidiaries, which examination was conducted by such accounting firm in accordance with GAAP, nothing has come to the attention of such accounting firm which would cause them to believe that a Default or Event of Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default or an Event of Default has occurred and is continuing, a statement as to the nature thereof, (2) setting forth in reasonable detail the calculations made during such period and as of the end of such period in determining compliance with the financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND (3) stating that Agent and the Banks may rely thereonshall be unqualified;
(ivc) contemporaneously with each monthly, quarterly and year-end financial report required by the foregoing CLAUSES (i), (ii) AND (iii), a certificate of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Parent stating that he or she has individually reviewed the provisions of this Agreement and that a review of the activities of Parent and the Subsidiaries during such monthly, quarterly and yearly period, as the case may be, has been made by him or her or under his or her supervision, with a view to determining whether Parent has fulfilled all its obligations under this Agreement, and that Parent has observed and performed each undertaking contained in this Agreement and is not in default in the observance or performance of any of the provisions hereof or, if Parent shall be so in default, specifying all such defaults and events of which he may have knowledge;
(v) within ninety (90) days reasonable promptness after the close of each fiscal year, a projection and estimate (to the best of Borrower's ability at the time made) of the financial position and the results for, and as of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower and its Subsidiaries, on a consolidated and, to the extent prepared, consolidating basis, prepared by Borrower, such projections to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of each such annual period, all in reasonable detail certified by Borrower's chief financial officer or vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein;
(vi) promptly after they are sent, made available or filedtransmission thereof, copies of all reportssuch financial statements, proxy statements notices and financial statements that Borrower sends or makes available reports as it shall send to its stockholders andpublic stockholders, concurrently with filingif any, and copies of all registration statements and all reports that Borrower which it files with the Securities and Exchange Commission (or any governmental body or agency succeeding to the functions of the Securities and Exchange Commission, including, but not limited to, 10Q, 10K and 8K reports, or with any other Governmental Authority where such registration statements and reports may be filed);
(viid) as soon as possiblewith reasonable promptness after the receipt thereof, and a copy of each other report submitted to Borrower or any Subsidiary by independent accountants in connection with any event within five (5) days after a Responsible Officer annual, interim or special audit made by them of the books of Borrower has or any Subsidiary (including any management letter);
(e) with reasonable promptness after the Executive Management of Borrower obtaining knowledge of (A) the occurrence of a Default or an Event of Default, or (B) any default or event an Officer's Certificate specifying the nature and period of default as defined in any other evidence of Debt or under any other agreement, indenture or other instrument under which such Debt has been issued, whether or not such Debt is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) existence thereof and such Event of Default, Default or such other default or event of default is not waived on or before two (2) Business Days after it occurs, the statement of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details of such default or event of default, or Default or Event of Default (and if an event under subclause (B) above, a copy of any notice received from the issuer or holder of such Debt) and the what action which Borrower proposes to take with respect thereto;
(viiif) simultaneously with reasonable promptness after the delivery of the financial statements under SUBPARAGRAPH 5.01(c)(ii) above, a certificate from the president and chief executive officer, the chief financial officer or the vice president and treasurer Executive Management of Borrower (A) demonstrating compliance with becoming aware that the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and other accounts receivable and a listing and aging of all accounts payable;
(ix) as soon as available, the annual written report of auditors pertaining to Borrower's and each of its Subsidiaries' internal controls submitted to Borrower by Borrower's independent public accountants in connection with each annual audit made by such accountants;
(x) within thirty (30) days after the close of each fiscal quarter in each fiscal year, a Borrowing Base Certificate of Borrower, appropriately completed by the chief financial officer or the vice president and treasurer of Borrower;
(xi) without duplication of CLAUSE (vii) above, upon delivery thereof pursuant to the Subordinated Lender Documents or the Note Purchase Documents, a copy holder of any notice given to any Subordinated Lender, Note Purchaser evidence of indebtedness or the Trustee by Borrower or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, a request for payment pursuant to Article 13 of the Indenture;
(xii) prompt written notice of any condition or event which has resulted or might result in (A) a Material Adverse Effect, or (B) a breach of, or noncompliance with, any term, condition or covenant contained herein, or (C) a material breach of, or noncompliance with, any term, condition or covenant of any contract to which Borrower or any Subsidiary is a party or by which it or its property may be bound which contract is material to Borrower and the Subsidiaries as a whole;
(xiii) prompt written notice of any actual or threatened claims, litigation, suits, proceedings or disputes (whether or not purportedly on behalf of Borrower) against or affecting Borrower or any Subsidiary or any of their property which, if adversely determined, would have a Material Adverse Effect (including, without in any way limiting the foregoing, claims, litigation, suits, proceedings or disputes involving monetary amounts in excess of One Million Dollars ($1,000,000) not covered by insurance or self-insurance), or any material labor controversy resulting in or threatening to result in a strike against Borrower or any Subsidiary, or any proposal by any Governmental Authority to acquire any of the material assets or business of Borrower or any Subsidiary, if such strike or acquisition would have a Material Adverse Effect;
(xiv) thirty (30) days' prior written notice of any change in the legal name of Borrower;
(xv) concurrently with filing, copies of IRS Form 5500 filed annually with respect to each Plan security of Borrower or any Subsidiary required to file such form, and, promptly after receipt thereof, copies of has given notice or taken any notice Borrower or any member of the Controlled Group may receive from the PBGC or the Internal Revenue Service other action with respect to any Plan; PROVIDED, HOWEVER, that this CLAUSE (xv) shall not apply to notices a claimed default or event of general application promulgated by the Department of Labor;
(xvi) as soon as possible, and in any event within thirty (30) days after Borrower or any Subsidiary knows or has reason to know that (A) any Reportable Event has occurred default with respect to any Plansuch indebtedness or security or event which, (B) Borrower with the giving of notice or any Subsidiary has become obligated to contribute to any Multiemployer Plan; passage of time, or (C) Borrower or any member of the Controlled Group has incurred withdrawal liability both, would constitute a default with respect to any Multiemployer Plansuch indebtedness or security, a statement from an Officer's Certificate specifying the president notice given or action taken by such holder and chief executive officer, the chief financial officer nature of the claimed default or the vice president and treasurer of Borrower setting forth details as to such event and the what action which Borrower or the affected Subsidiary is taking or proposes to take with respect thereto;
(g) with reasonable promptness after the Executive Management of Borrower learning thereof, together any (i) notice that Borrower or any Subsidiary is not in compliance in all material respects with a copy all terms and conditions of the all material permits, licenses and authorizations which are required under Environmental Laws, or that Borrower or any Subsidiary is not in compliance in all material respects with all other material limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in any applicable Environmental Laws; (ii) notice of any Reportable Event as described in (A) above as given past, present or future events, conditions, circumstances, activities, practices, incidents, actions or plans which, with respect to the PBGC if a copy of such notice is available to Borrower or the affected Subsidiary;
(xvii) within twenty (20) days of Agent's or any Bank's request therefor: (A) a current list of the names, addresses and outstanding debts of all Account Debtors, and (B) a current list of the names, addresses and outstanding amounts due all creditors of Borrower or any Subsidiary, may interfere with or prevent compliance in all material respects or continued compliance in all material respects with material Environmental Laws, or may give rise to any liability, or otherwise form the basis of any claim, action, demand, suit, proceeding, hearing, study or investigation, based on or related to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling, or the emission, discharge, release or threatened release into the environment, of any pollutant, contaminant, chemical, or industrial, toxic or hazardous substance or waste; and (iii) notice or claim of any civil, criminal or administrative action, suit, demand, claim, hearing, notice or demand letter, notice of violation, investigation, or proceeding pending or threatened against Borrower or any Subsidiary relating in any way to Environmental Laws;
(xviiih) within with reasonable promptness after (10i) days after Agent's the occurrence thereof, notice of the institution by any Person of any action, suit or proceeding or any Bank's request thereforgovernmental investigation or any arbitration, copies before any court or arbitrator or any governmental or administrative body, agency, or official, against Borrower, any Subsidiary, or any material property of federal income tax returns filed by any of them, in which the amount in controversy is stated to be more than $100,000 or, where no amount in controversy is stated, which might, if adversely determined, have a material and adverse effect on the business, property or assets or financial condition of Borrower and its SubsidiariesSubsidiaries taken as a whole, or (ii) the receipt by the Executive Management of Borrower of actual knowledge thereof, notice of the threat of any such action, suit, proceeding, investigation or arbitration, each such notice under this subsection to specify, if known, the amount of damages being claimed or other relief being sought, the nature of the claim, the Person instituting the action, suit, proceeding, investigation or arbitration, and any other significant features of the claim;
(xixi) thirty with reasonable promptness after the Executive Management of the Borrower becoming aware thereof, written notice of (30x) days prior to any change reduction in the location beneficial ownership of any of Borrower's places Voting Stock by any member of business Borrower's Executive Management or by any 5% or greater shareholder of Borrower, (y) any acquisition after the date hereof by any Person of beneficial ownership of 10% or more of Borrower's Voting Stock, or (z) any change in the Executive Management of the Borrower or of the establishment of any new, or the discontinuance of any existing place of business, written notice of such change, establishment or discontinuanceBank Subsidiary; and
(xxj) Such with reasonable promptness, such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or operations, business and financial condition (financial or otherwise) of Borrower or Borrower's its Subsidiaries, and compliance by Borrower with the terms of this Agreement and the other Credit Documents, as Agent or any Bank may from time to time reasonably request.
Appears in 1 contract
Financial Statements and Notices. Borrower Reseller Agent will furnish deliver to Agent and each BankCPC or cause to be delivered to CPC:
(i) a. within thirty (30) 120 days after the close of each calendar month in each of its fiscal yearyears, copies a copy of Presidio’s annual audited financial statements as required to be delivered pursuant to Section 5.01(a) of the consolidated andPresidio Credit Agreement (as in effect on the date hereof), to the extent prepared, consolidating financial statements for together with a true and accurate copy of any management letter delivered by such calendar month for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of income and retained earnings (such income statements to include a comparison between projected income for each location at which Borrower and its Subsidiaries conduct business as set forth in the annual financial projections provided under CLAUSE (v) and actual performance for each location at which Borrower and its Subsidiaries conduct business); and (B) balance sheets as of the end of such monthly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared accountants in accordance with GAAP (subject to year-end audit adjustment)the Presidio Credit Agreement;
(ii) within forty-five (45) days after the close of each fiscal quarter in each fiscal year, copies of the consolidated and, to the extent prepared, consolidating financial statements for such fiscal quarter for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of such quarterly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustment)b. [intentionally omitted];
(iii) c. within ninety (90) 60 days after the close of each fiscal year, a copy of (i) Presidio’s budget for the consolidated and, next succeeding fiscal year as required to the extent prepared, consolidating financial statements for Borrower and its Subsidiaries for such fiscal year, each be delivered pursuant to include: (ASection 5.01(e) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of such fiscal year; such financial statements to be audited by independent certified public accountant acceptable to Presidio Credit Agreement (as in effect on the Required Banks, to contain the unqualified opinion of such accountants that such statements have been presented fairly in all material respects in accordance with GAAP, together with a certificate of such accounting firm to the Agent and the Banks:
(1) stating that in the course of the regular examination of the business of Borrower and the Subsidiaries, which examination was conducted by such accounting firm in accordance with GAAP, nothing has come to the attention of such accounting firm which would cause them to believe that a Default or Event of Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default or an Event of Default has occurred and is continuing, a statement as to the nature thereof, (2) setting forth in reasonable detail the calculations made during such period and as of the end of such period in determining compliance with the financial covenants set forth in SUBPARAGRAPHS 5.01(idate hereof), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND (3) stating that Agent and the Banks may rely thereon;
(iv) contemporaneously with each monthly, quarterly and year-end financial report required by the foregoing CLAUSES (i), (ii) AND (iii), a certificate of each Reseller’s budget for the president and chief executive officer, the chief financial officer or the vice president and treasurer of Parent stating that he or she has individually reviewed the provisions of this Agreement and that a review of the activities of Parent and the Subsidiaries during such monthly, quarterly and yearly period, as the case may be, has been made by him or her or under his or her supervision, with a view to determining whether Parent has fulfilled all its obligations under this Agreement, and that Parent has observed and performed each undertaking contained in this Agreement and is not in default in the observance or performance of any of the provisions hereof or, if Parent shall be so in default, specifying all such defaults and events of which he may have knowledgenext succeeding fiscal year;
(v) d. within ninety (90) 45 days after the close of each fiscal quarter of each fiscal year, a projection and estimate (copy of Presidio’s unaudited financial statements as required to the best of Borrower's ability at the time madebe delivered pursuant to Section 5.01(b) of the financial position and Presidio Credit Agreement (as in effect on the results fordate hereof), and as together with the Compliance Certificate required to be delivered pursuant to Section D of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower Financial Covenants Amendment;
e. as soon as available and its Subsidiaries, on a consolidated and, to the extent prepared, consolidating basis, prepared by Borrower, such projections to include: in any event within (A1) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of 35 days after the end of each month other than the month ending at the end of its fiscal year, and (2) 75 days after the end of the month ending at the end of the fiscal year, (a) a copy of each Reseller’s unaudited balance sheet and statement of operating results, prepared in conformity with GAAP; and (b) with regard to the balance sheet and statement of operating results delivered at the end of the fiscal year, a certificate, in form and substance reasonably satisfactory to CPC, signed by such annual period, all in reasonable detail certified by Borrower's Reseller’s president or chief financial officer or vice president (each a “Financial Officer”), certifying that such balance sheet and treasurer to present statement of operating results fairly represent in all material respects the financial condition and other information reflected therein and to have been prepared results of operations of such Reseller as at the end of such fiscal year in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein;
f. at any time that outstanding Indebtedness exists hereunder, within 2 Business Days after the end of each seven day period (vinot including the period falling during the last week of a month, which may be less than 7 days), for the immediately preceding 7 days and within 15 days after the end of each month, for the preceding month, (i) promptly after they are senta statement showing age and status of each Reseller’s Accounts and accounts payable for the preceding period (weekly or monthly, made available or filedas applicable) and a status of Inventory showing location, copies of all reportscomponents and value, proxy statements in such form and financial statements that Borrower sends or makes available detail as CPC may reasonably request, and (ii) documentation to its stockholders and, concurrently with filing, copies of all registration statements and reports that Borrower files with support the Securities and Exchange CommissionAccounts described in clause (f)(i), including, but not limited to, 10Q, 10K and 8K sales reports, or with any other Governmental Authority where such registration statements cash receipts reports, credit and debit journals, inventory reports, accounts payable reports may be filedand accounts receivable aging reports (collectively, the “Collateral Report”);
g. schedules of Accounts in form and detail reasonably acceptable to CPC (viiwhich shall include current addresses and telephone numbers of each of Resellers’ Account Debtors) as soon often as possiblerequested by CPC; provided, however, that CPC may not request such information more than once per fiscal quarter so long as no Default then exists;
h. at CPC’s request, copies (or during the continuance of a Default, originals) of all orders, invoices, and in any event within five (5) days after a Responsible Officer similar agreements and documents; all shipping instructions, delivery receipts, bills of Borrower has knowledge of (A) the occurrence of a Default or an Event of Defaultlading, or (B) any default or event of default as defined in any and other evidence of Debt or under any other agreement, indenture or other instrument under which such Debt has been issued, whether or not such Debt is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) and such Event delivery of Default, Default or such other default or event of default is not waived on or before two (2) Business Days after it occursInventory, the statement sale or disposition of the president and chief executive officerwhich has resulted in Accounts;
i. at CPC’s request, the chief financial officer originals of all Instruments, Chattel Paper, security agreements, guarantees and other documents and property evidencing or securing any Accounts; in the vice president same form as received and treasurer upon such request by CPC, immediately upon the receipt of Borrower setting forth details of each such default or event of defaultdocument, or Default or Event of Default (and if an event under subclause (B) above, a copy of any notice received from with all necessary endorsements to enable CPC to enforce the issuer or holder of such Debt) and the action which Borrower proposes to take with respect theretosame;
(viii) simultaneously with the delivery of the financial statements under SUBPARAGRAPH 5.01(c)(ii) abovej. on a monthly basis at any time that outstanding Indebtedness exists hereunder, a certificate from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower (A) demonstrating compliance with the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and other accounts receivable and a listing and aging of all accounts payable;
(ix) as soon as available, the annual written report of auditors pertaining to Borrower's and each of its Subsidiaries' internal controls submitted to Borrower by Borrower's independent public accountants in connection with each annual audit made by such accountants;
(x) within thirty (30) 30 days after the close end of each fiscal quarter in each fiscal yearsuch month, a Borrowing Base Certificate statement showing the availability of Borrower, appropriately completed by credit resources under the chief financial officer or Presidio Finance Agreements as at the vice president and treasurer end of Borrowersuch month;
(xi) without duplication of CLAUSE (vii) above, upon delivery thereof pursuant to the Subordinated Lender Documents or the Note Purchase Documents, a copy of any notice given to any Subordinated Lender, Note Purchaser or the Trustee by Borrower or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, a request for payment pursuant to Article 13 of the Indenture;
(xii) prompt written notice of any condition or event which has resulted or might result in (A) a Material Adverse Effect, or (B) a breach of, or noncompliance with, any term, condition or covenant contained herein, or (C) a material breach of, or noncompliance with, any term, condition or covenant of any contract to which Borrower or any Subsidiary is a party or by which it or its property may be bound which contract is material to Borrower and the Subsidiaries as a whole;
(xiii) prompt written notice of any actual or threatened claims, litigation, suits, proceedings or disputes (whether or not purportedly on behalf of Borrower) against or affecting Borrower or any Subsidiary or any of their property which, if adversely determined, would have a Material Adverse Effect (including, without in any way limiting the foregoing, claims, litigation, suits, proceedings or disputes involving monetary amounts in excess of One Million Dollars ($1,000,000) not covered by insurance or self-insurance), or any material labor controversy resulting in or threatening to result in a strike against Borrower or any Subsidiary, or any proposal by any Governmental Authority to acquire any of the material assets or business of Borrower or any Subsidiary, if such strike or acquisition would have a Material Adverse Effect;
(xiv) thirty (30) days' prior written notice of any change in the legal name of Borrower;
(xv) concurrently with filing, copies of IRS Form 5500 filed annually with respect to each Plan of Borrower or any Subsidiary required to file such form, and, promptly after receipt thereof, k. copies of any notice Borrower and all reports, examinations, notices, warnings and citations issued by any governmental or any member of the Controlled Group may receive from the PBGC quasi-governmental (whether federal, state or the Internal Revenue Service with respect to any Plan; PROVIDEDlocal), HOWEVERunit, that this CLAUSE (xv) shall not apply to notices of general application promulgated by the Department of Labor;
(xvi) as soon as possibleagency, and in any event within thirty (30) days after Borrower body or any Subsidiary knows or has reason to know that (A) any Reportable Event has occurred with respect to any Plan, (B) Borrower or any Subsidiary has become obligated to contribute to any Multiemployer Plan; or (C) Borrower or any member of the Controlled Group has incurred withdrawal liability with respect to any Multiemployer Plan, a statement from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details as to such event and the action which Borrower or the affected Subsidiary proposes to take with respect thereto, together with a copy of the notice of any Reportable Event as described in (A) above as given to the PBGC if a copy of such notice is available to Borrower or the affected Subsidiary;
(xvii) within twenty (20) days of Agent's or any Bank's request therefor: (A) a current list of the names, addresses and outstanding debts of all Account Debtors, and (B) a current list of the names, addresses and outstanding amounts due all creditors of Borrower or any Subsidiary;
(xviii) within (10) days after Agent's or any Bank's request therefor, copies of federal income tax returns filed by Borrower and its Subsidiaries;
(xix) thirty (30) days prior to any change in the location of any of Borrower's places of business or of the establishment of any new, or the discontinuance of any existing place of business, written notice of such change, establishment or discontinuanceentity; and
(xx) Such l. such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Borrower or Borrower's Subsidiaries, and compliance by Borrower with the terms of this Agreement and the other Credit Documents, as Agent or any Bank may CPC from time to time reasonably requestrequests.
Appears in 1 contract
Samples: Credit Agreement (Presidio, Inc.)
Financial Statements and Notices. Borrower will furnish Borrowers shall promptly deliver to Agent and each Bankthe Lender:
(ia) within thirty (30) days after the close end of each calendar month in each fiscal yearmonth, copies of the consolidated and, to the extent prepared, consolidating financial statements for such calendar month for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of income and retained earnings (such income statements to include a comparison between projected income for each location at which Borrower cash flows of CCI and its Subsidiaries conduct business as set forth in for such period and for the annual financial projections provided under CLAUSE (v) and actual performance for each location at which Borrower and its Subsidiaries conduct business); and (B) balance sheets as period from the beginning of such fiscal year to the end of such period, and a consolidated balance sheet of CCI and its consolidated Subsidiaries as at the end of such period, setting forth in the case of each monthly periodstatement in comparative form figures for the corresponding period in the preceding fiscal year, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to changes resulting from normal year-end audit adjustmentadjustments), but not audited, and accompanied by a duly completed and executed Compliance Certificate dated as of the date of the delivery of such financial statements;
(iib) within forty-five fifty (4550) days after the close end of each fiscal quarter of CCI (or within such additional period thereafter of up to 30 days in each fiscal year, copies of the consolidated and, which CCI is permitted to the extent prepared, consolidating financial statements file its quarterly report for such fiscal quarter for Borrower and its Subsidiariesperiod with the SEC), prepared by Borrower, each to include: (A) statements of cash flows; (B) consolidated statements of income and retained earnings; cash flows of CCI and (C) balance sheets as its Subsidiaries for such period, and for the period from the beginning of such fiscal year to the end of such quarterly period, and a consolidated balance sheets of CCI and its consolidated Subsidiaries as at the end of such year, setting forth in each case in comparative form corresponding figures from the preceding annual audit, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to changes resulting from normal year-end audit adjustmentadjustments);, but not audited, and accompanied by a duly completed and executed Compliance Certificate dated as of the dated of the delivery of such financial statements:
(iiic) within ninety ninety-five (9095) days after the close end of each fiscal year of CCI (or within such additional period thereafter of up to 30 days in which CCI is permitted to file its annual report for such period with the SEC), consolidated and consolidating statements of income and cash flows of CCI and its consolidated Subsidiaries for such year, and consolidated and consolidating balance sheets of CCI and its consolidated Subsidiaries as at the end of such year, setting forth in each case in comparative from corresponding figures from the preceding annual audit, all in reasonable detail, prepared in accordance with GAAP and reasonably satisfactory in scope to the Lender and audited in accordance with generally accepted auditing standards and certified to CCI by independent public accountants of recognized standing selected by CCI and reasonably acceptable to the Lender whose certificate shall be unqualified, which financial statements shall be accompanied by a duly completed and executed Compliance Certificate dated as of the date of the delivery of such financial statements;
(d) not less than thirty (30) days prior to the beginning of each fiscal year of Borrowers, Borrowers also shall provide Lender with a copy of the Borrowers' annual budget and business plan for such fiscal year which shall include month-by-month projections for each of the Borrowers separately and for CCI on a consolidated basis;
(e) promptly upon receipt thereof, a copy of the consolidated and, each other report submitted to the extent prepared, consolidating financial statements for Borrower and its Subsidiaries for such fiscal year, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of such fiscal year; such financial statements to be audited by independent certified public accountant acceptable to the Required Banks, to contain the unqualified opinion of such accountants that such statements have been presented fairly in all material respects in accordance with GAAP, together with a certificate of such accounting firm to the Agent and the Banks:
(1) stating that in the course of the regular examination of the business of Borrower and the Subsidiaries, which examination was conducted by such accounting firm in accordance with GAAP, nothing has come to the attention of such accounting firm which would cause them to believe that a Default CCI or Event of Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default or an Event of Default has occurred and is continuing, a statement as to the nature thereof, (2) setting forth in reasonable detail the calculations made during such period and as of the end of such period in determining compliance with the financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND (3) stating that Agent and the Banks may rely thereon;
(iv) contemporaneously with each monthly, quarterly and year-end financial report required by the foregoing CLAUSES (i), (ii) AND (iii), a certificate of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Parent stating that he or she has individually reviewed the provisions of this Agreement and that a review of the activities of Parent and the Subsidiaries during such monthly, quarterly and yearly period, as the case may be, has been made by him or her or under his or her supervision, with a view to determining whether Parent has fulfilled all its obligations under this Agreement, and that Parent has observed and performed each undertaking contained in this Agreement and is not in default in the observance or performance of any of the provisions hereof or, if Parent shall be so in default, specifying all such defaults and events of which he may have knowledge;
(v) within ninety (90) days after the close of each fiscal year, a projection and estimate (to the best of Borrower's ability at the time made) of the financial position and the results for, and as of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower and its Subsidiaries, on a consolidated and, to the extent prepared, consolidating basis, prepared Subsidiaries by Borrower, such projections to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of each such annual period, all in reasonable detail certified by Borrower's chief financial officer or vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein;
(vi) promptly after they are sent, made available or filed, copies of all reports, proxy statements and financial statements that Borrower sends or makes available to its stockholders and, concurrently with filing, copies of all registration statements and reports that Borrower files with the Securities and Exchange Commission, including, but not limited to, 10Q, 10K and 8K reports, or with any other Governmental Authority where such registration statements and reports may be filed;
(vii) as soon as possible, and in any event within five (5) days after a Responsible Officer of Borrower has knowledge of (A) the occurrence of a Default or an Event of Default, or (B) any default or event of default as defined in any other evidence of Debt or under any other agreement, indenture or other instrument under which such Debt has been issued, whether or not such Debt is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) and such Event of Default, Default or such other default or event of default is not waived on or before two (2) Business Days after it occurs, the statement of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details of such default or event of default, or Default or Event of Default (and if an event under subclause (B) above, a copy of any notice received from the issuer or holder of such Debt) and the action which Borrower proposes to take with respect thereto;
(viii) simultaneously with the delivery of the financial statements under SUBPARAGRAPH 5.01(c)(ii) above, a certificate from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower (A) demonstrating compliance with the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and other accounts receivable and a listing and aging of all accounts payable;
(ix) as soon as available, the annual written report of auditors pertaining to Borrower's and each of its Subsidiaries' internal controls submitted to Borrower by Borrower's independent public accountants in connection with each annual any annual, interim or special audit made by them of the books of CCI or any such Subsidiary (including, without limitation any management report prepared in connection with such accountants' annual audit of CCI and its consolidated Subsidiaries);
(xf) within thirty (30) days after the close end of each fiscal quarter in each fiscal yearcalendar quarter, a Borrowing Base Certificate written reconciliation of Borrowerthe public, appropriately completed pay or other telephones installed and the public, pay or other telephones removed by the chief financial officer or the vice president and treasurer of BorrowerCredit Parties;
(xig) without duplication of CLAUSE (vii) above, promptly upon delivery thereof pursuant to the Subordinated Lender Documents or the Note Purchase Documents, a copy of any notice given to any Subordinated Lender, Note Purchaser or the Trustee by Borrower or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, a request for payment pursuant to Article 13 of the Indenture;
(xii) prompt written notice of any condition or event which has resulted or might result in (A) a Material Adverse Effect, or (B) a breach of, or noncompliance with, any term, condition or covenant contained herein, or (C) a material breach of, or noncompliance with, any term, condition or covenant of any contract to which Borrower or any Subsidiary is a party or by which it or its property may be bound which contract is material to Borrower and the Subsidiaries as a whole;
(xiii) prompt written notice of any actual or threatened claims, litigation, suits, proceedings or disputes (whether or not purportedly on behalf of Borrower) against or affecting Borrower or any Subsidiary or any of their property which, if adversely determined, would have a Material Adverse Effect (including, without in any way limiting the foregoing, claims, litigation, suits, proceedings or disputes involving monetary amounts in excess of One Million Dollars ($1,000,000) not covered by insurance or self-insurance), or any material labor controversy resulting in or threatening to result in a strike against Borrower or any Subsidiary, or any proposal by any Governmental Authority to acquire any of the material assets or business of Borrower or any Subsidiary, if such strike or acquisition would have a Material Adverse Effect;
(xiv) thirty (30) days' prior written notice of any change in the legal name of Borrower;
(xv) concurrently with filing, copies of IRS Form 5500 filed annually with respect to each Plan of Borrower or any Subsidiary required to file such form, and, promptly after receipt transmission thereof, copies of any notice Borrower all such financial statements, proxy statements, notices and reports as CCI shall send to its public stockholders, if any, and copies of all registration statements and all reports which CCI files with the SEC (or any member governmental body or agency succeeding to the functions of the Controlled Group may receive from SEC);
(h) promptly upon obtaining knowledge of an Event of Default, an Officer's Certificate specifying the PBGC nature and period of existence thereof and what action the Borrowers propose to take with respect thereto; 35
(i) immediately upon becoming aware that the holder of any evidence of indebtedness or the Internal Revenue Service any security of any Credit Party has given notice or taken any other action with respect to any Plan; PROVIDED, HOWEVER, that this CLAUSE (xv) shall not apply to notices a claimed default or event of general application promulgated by the Department of Labor;
(xvi) as soon as possible, and in any event within thirty (30) days after Borrower or any Subsidiary knows or has reason to know that (A) any Reportable Event has occurred default with respect to any Plansuch indebtedness or security or event which, (B) Borrower with the giving of notice or any Subsidiary has become obligated to contribute to any Multiemployer Plan; passage of time, or (C) Borrower or any member of the Controlled Group has incurred withdrawal liability both, would constitute a default with respect to any Multiemployer Plansuch indebtedness or security, a statement from an Officer's Certificate specifying the president notice given or action taken by such holder and chief executive officer, the chief financial officer nature of the claimed default or the vice president and treasurer of Borrower setting forth details as to such event and the what action which Borrower such Credit Party is taking or the affected Subsidiary proposes to take with respect thereto, together provided that in each and every case noted above the aggregate -------- outstanding principal balance of the indebtedness or security involved (or all such indebtedness or securities combined) must equal or exceed $500,000;
(j) promptly after learning thereof, any (i) notice that any Credit Party is not in compliance in all material respects with all terms and conditions of any permit, license or authorization which is required under Environmental Laws, or that any Credit Party is not in compliance in all material respects with all other limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in any applicable Environmental Laws; (ii) notice of any past, present or future events, conditions, circumstances, activities, practices, incidents, actions or plans which, with respect to any Credit Party, may materially interfere with or prevent compliance in all material respects or continued compliance in all material respects with any applicable Environmental Laws; and (iii) notice or claim of any civil, criminal or administrative action, suit, demand, claim, hearing, notice or demand letter, notice of violation, investigation, or proceeding pending or threatened against any Credit Party relating in any way to any applicable Environmental Laws;
(k) promptly after (i) the occurrence thereof, notice of the institution by any Person of any action, suit or proceeding or any governmental investigation or any arbitration, before any court or arbitrator or any governmental or administrative body, agency, or official, against any Credit Party, or any material property of any Credit Party, in which the amount in controversy is stated to be more than $500,000 individually or in the aggregate or, where no amount in controversy is stated, or the amount in controversy is less than $500,000, which might, if adversely determined, have a Material Adverse Effect or (ii) the receipt of actual knowledge thereof, notice of the threat of any such action, suit, proceeding, investigation or arbitration, each such notice under this subsection to specify, if known, the amount of damages being claimed or other relief being sought, the nature of the claim, the Person instituting the action, suit, proceeding, investigation or arbitration, and any other significant features of the claim;
(i) promptly after the occurrence thereof with respect to any Plan of any Credit Party or any ERISA Affiliate thereof, or any trust established thereunder, notice of (x) a "reportable event" described in Section 4043 of ERISA and the regulations issued from time to time thereunder (other than a "reportable event" not subject to the provisions for 30-day notice to the PBGC under such regulations), or (y) any other event which could subject any Credit Party to any tax, penalty or liability under Title I or Title IV of ERISA or Chapter 43 of the Code, or any tax or penalty resulting from a loss of deduction under Sections 162, 404 or 419 of the Code, where any such taxes, penalties or liabilities exceed or could exceed $500,000 in the aggregate;
(ii) promptly after such notice must be provided to the PBGC, or to a Plan participant, beneficiary or alternative payee, any notice required under Section 101(d), 302(f)(4), 303, 307, 4041(b)(1)(A) or 4041(c)(1)(A) of ERISA or under Section 401(a)(29) or 412 of the Code with respect to any Plan of any Credit Party or any ERISA Affiliate thereof;
(iii) promptly after receipt, any notice received by any Credit Party or any ERISA Affiliate thereof concerning the intent of the PBGC or any other governmental authority to terminate a Plan of such Credit Party or ERISA Affiliate thereof which is subject to Title IV of ERISA, to impose any liability on such Credit Party or ERISA Affiliate under Title IV of ERISA or Chapter 43 of the Code;
(iv) promptly upon the filing thereof with the Internal Revenue Service ("IRS") or the United States Department of Labor ("DOL"), a copy of the notice IRS --- --- Form 5500 or annual report for each Plan of any Reportable Event as described in (A) above as given Credit Party or ERISA Affiliate thereof which is subject to the PBGC if a copy Title IV of such notice is available to Borrower or the affected Subsidiary;
(xvii) within twenty (20) days of Agent's or any Bank's request therefor: (A) a current list of the names, addresses and outstanding debts of all Account Debtors, and (B) a current list of the names, addresses and outstanding amounts due all creditors of Borrower or any Subsidiary;
(xviii) within (10) days after Agent's or any Bank's request therefor, copies of federal income tax returns filed by Borrower and its Subsidiaries;
(xix) thirty (30) days prior to any change in the location of any of Borrower's places of business or of the establishment of any new, or the discontinuance of any existing place of business, written notice of such change, establishment or discontinuanceERISA; and
(xxv) Such other instrumentsupon the request of the Lender, agreements(x) true and complete copies of any and all documents, certificatesgovernment reports and IRS determination or opinion letters or rulings for any Plan of any Credit Party from IRS, opinionsPBGC or DOL, statements, documents and information relating to the operations or condition (financial or otherwisey) of Borrower or Borrower's Subsidiaries, and compliance by Borrower any reports filed with the terms IRS, PBGC or DOL with respect to a Plan of this Agreement and the other any Credit Documents, as Agent Party or any Bank may from time to time reasonably request.ERISA Affiliate thereof, or (z) a current statement of withdrawal liability for each Multiemployer Plan of any Credit Party or any ERISA Affiliate thereof;
Appears in 1 contract
Financial Statements and Notices. The Borrower will shall furnish to Agent the Lender the following financial statements, information and each Banknotices:
(ia) within thirty (30) days after the close of each calendar month in each fiscal year, copies of the consolidated and, to the extent prepared, consolidating financial statements for such calendar month for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of income and retained earnings (such income statements to include a comparison between projected income for each location at which Borrower and its Subsidiaries conduct business as set forth in the annual financial projections provided under CLAUSE (v) and actual performance for each location at which Borrower and its Subsidiaries conduct business); and (B) balance sheets as of the end of such monthly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustment);
(ii) within Within forty-five (45) days after the close of each fiscal quarter in each the first three quarters of Borrower's fiscal year, copies commencing with the fiscal quarter ending March 31, 1997:
(i) a statement of the consolidated and, to the extent prepared, consolidating financial statements stockholders' equity for such fiscal quarter for Borrower and its Subsidiaries, prepared by Borrower, each to include: quarter; (Aii) statements a statement of cash flowsflows for such quarter; (Biii) statements of an income and retained earningsstatement for such quarter; and (Civ) a balance sheets sheet as of the end of such quarterly periodquarter. All such statements shall be prepared on a consolidated and consolidating basis for the Borrower and its subsidiaries, all in reasonable detail, subject to year-end audit adjustments and without footnotes, shall include appropriate comparisons to the same period for the prior year, and shall be certified by Borrower's president and chief executive officer, chief the Chief financial officer or Officer of the vice president and treasurer to present fairly the financial condition and other information reflected therein and Borrower to have been prepared in accordance with GAAP (consistently applied, subject to year-end audit adjustment)adjustments;
(iiib) within Within ninety (90) days after the close of each Borrower's fiscal year, commencing with the fiscal year ending December 31, 1996 a copy of the consolidated andannual audit report for such year for the Borrower, to including for the extent prepared, consolidating financial statements for Borrower and its Subsidiaries for such fiscal year, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of such fiscal year; such financial statements to be audited by independent certified public accountant acceptable to the Required Banks, to contain the unqualified opinion of such accountants that such statements have been presented fairly in all material respects in accordance with GAAP, together with a certificate of such accounting firm to the Agent and the Banks:
(1) stating that in the course of the regular examination of the business of Borrower and the Subsidiaries, which examination was conducted by such accounting firm in accordance with GAAP, nothing has come to the attention of such accounting firm which would cause them to believe that a Default or Event of Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default or an Event of Default has occurred and is continuing, a statement as to the nature thereof, (2) setting forth in reasonable detail the calculations made during such period and as of the end of such period in determining compliance with the financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND (3) stating that Agent and the Banks may rely thereon;
(iv) contemporaneously with each monthly, quarterly and year-end financial report required by the foregoing CLAUSES (i), (ii) AND (iii), a certificate of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Parent stating that he or she has individually reviewed the provisions of this Agreement and that a review of the activities of Parent and the Subsidiaries during such monthly, quarterly and yearly period, as the case may be, has been made by him or her or under his or her supervision, with a view to determining whether Parent has fulfilled all its obligations under this Agreement, and that Parent has observed and performed each undertaking contained in this Agreement and is not in default in the observance or performance of any of the provisions hereof or, if Parent shall be so in default, specifying all such defaults and events of which he may have knowledge;
(v) within ninety (90) days after the close of each fiscal year, a projection and estimate (to the best of Borrower's ability at the time made) of the financial position and the results for, and as of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower and its Subsidiaries, on a consolidated and, to the extent prepared, consolidating basis, prepared by Borrower, such projections to include: basis (Ai) statements a statement of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of each such annual period, all in reasonable detail certified by Borrower's chief financial officer or vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein;stockholders'
(vic) promptly Promptly after they are sent, made available or filed, copies of all material reports, proxy statements and financial statements that the Borrower sends or makes available to its stockholders and, concurrently with filing, copies of and all registration statements and reports that the Borrower files may file with the Securities and Exchange Commission, including, but not limited to, 10Q, 10K and 8K reports, or with any other Governmental Authority where such registration statements and reports may be filed;
(viid) as soon as possible, and Promptly but in any no event within later than five (5) days Banking Days after a Responsible the Chief Financial Officer of the Borrower has obtains knowledge of (A) the occurrence of a an Event of Default or an Event of DefaultIncipient Default and, or within ten (B10) any default or event of default as defined in any other evidence of Debt or under any other agreementcalendar days after obtaining such knowledge, indenture or other instrument under which such Debt has been issued, whether or not such Debt is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) and such Event of Default, Default or such other default or event of default is not waived on or before two (2) Business Days after it occurs, provide the Lender with a statement of an authorized officer of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details of such default or event of default, or Default or Event of Default (and if an event under subclause (B) above, a copy of any notice received from the issuer or holder of such Debt) Incipient Default and the action which the Borrower proposes to take with respect thereto;
(viiie) simultaneously with the delivery of the financial statements under SUBPARAGRAPH 5.01(c)(iiPromptly but in no event later than ten (10) above, a certificate from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower (A) demonstrating compliance with the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and other accounts receivable and a listing and aging of all accounts payable;
(ix) as soon as available, the annual written report of auditors pertaining to Borrower's and each of its Subsidiaries' internal controls submitted to Borrower by Borrower's independent public accountants in connection with each annual audit made by such accountants;
(x) within thirty (30) calendar days after the close of each fiscal quarter in each fiscal year, a Borrowing Base Certificate of Borrower, appropriately completed by the chief financial officer or the vice president and treasurer of Borrower;
(xi) without duplication of CLAUSE (vii) above, upon delivery thereof pursuant to the Subordinated Lender Documents or the Note Purchase Documents, a copy of any notice given to any Subordinated Lender, Note Purchaser or the Trustee by Borrower or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, a request for payment pursuant to Article 13 Chief Financial Officer of the Indenture;
(xii) prompt written notice of any condition or event which has resulted or might result in (A) a Material Adverse EffectBorrower learns thereof, or (B) a breach of, or noncompliance with, any term, condition or covenant contained herein, or (C) a material breach of, or noncompliance with, any term, condition or covenant of any contract to which Borrower or any Subsidiary is a party or by which it or its property may be bound which contract is material to Borrower and the Subsidiaries as a whole;
(xiii) prompt written notice of any actual or threatened claims, litigation, suits, investigations, or proceedings against or disputes affecting the Borrower, including, without limitation: (i) any claim, litigation, suit, investigation, proceeding or dispute involving a monetary amount, whether or not purportedly on behalf of Borrower) against or affecting Borrower or any Subsidiary or any of their property whichcovered by insurance, if adversely determined, would have a Material Adverse Effect (including, without in any way limiting the foregoing, claims, litigation, suits, proceedings or disputes involving monetary amounts in excess of One Million Dollars two million dollars ($1,000,000) not covered by insurance or self-insurance2,000,000), (ii) any denial, suspension, or revocation of any material labor controversy resulting in Governmental Approval; (iii) any investigation or threatening to result in a strike against Borrower proceeding before or any Subsidiary, or any proposal by any Governmental Authority administrative or governmental agency which is reasonably likely to acquire any of the material assets or business of Borrower or any Subsidiary, if such strike or acquisition would have a Material Adverse Effect;; (iv) any environmental Claim from any person concerning any
(xivf) thirty Within a reasonable time after a request therefor, such other information as the Lender may reasonably request. Each notice pursuant to this Section 5.1 (30d), (e) days' prior or (f) shall be accompanied by a written notice of any change in the legal name of Borrower;
(xv) concurrently with filing, copies of IRS Form 5500 filed annually with respect to each Plan of Borrower or any Subsidiary required to file such form, and, promptly after receipt thereof, copies of any notice Borrower or any member statement by an authorized officer of the Controlled Group may receive from the PBGC or the Internal Revenue Service with respect to any Plan; PROVIDED, HOWEVER, that this CLAUSE (xv) shall not apply to notices of general application promulgated by the Department of Labor;
(xvi) as soon as possible, and in any event within thirty (30) days after Borrower or any Subsidiary knows or has reason to know that (A) any Reportable Event has occurred with respect to any Plan, (B) Borrower or any Subsidiary has become obligated to contribute to any Multiemployer Plan; or (C) Borrower or any member of the Controlled Group has incurred withdrawal liability with respect to any Multiemployer Plan, a statement from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details as of the occurrence referred to therein known to such event officer and stating what action the action which Borrower or the affected Subsidiary proposes to take with respect thereto, together with a copy of the notice of any Reportable Event as described in (A) above as given to the PBGC if a copy of such notice is available to Borrower or the affected Subsidiary;
(xvii) within twenty (20) days of Agent's or any Bank's request therefor: (A) a current list of the names, addresses and outstanding debts of all Account Debtors, and (B) a current list of the names, addresses and outstanding amounts due all creditors of Borrower or any Subsidiary;
(xviii) within (10) days after Agent's or any Bank's request therefor, copies of federal income tax returns filed by Borrower and its Subsidiaries;
(xix) thirty (30) days prior to any change in the location of any of Borrower's places of business or of the establishment of any new, or the discontinuance of any existing place of business, written notice of such change, establishment or discontinuance; and
(xx) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Borrower or Borrower's Subsidiaries, and compliance by Borrower with the terms of this Agreement and the other Credit Documents, as Agent or any Bank may from time to time reasonably request.
Appears in 1 contract
Financial Statements and Notices. The Borrower will shall furnish to Agent the following financial statements, information and each Banknotices:
(ia) within thirty (30) days after To the close of Agent, with sufficient copies for distribution by the Agent to each calendar month in each fiscal year, copies of the consolidated andBanks, to the extent prepared, consolidating financial statements for such calendar month for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of income and retained earnings (such income statements to include a comparison between projected income for each location at which Borrower and its Subsidiaries conduct business as set forth in the annual financial projections provided under CLAUSE (v) and actual performance for each location at which Borrower and its Subsidiaries conduct business); and (B) balance sheets as of the end of such monthly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustment);
(ii) within forty-five (45) days after the close end of each fiscal quarter in each fiscal yearmonth, copies commencing with the month ending December 31, 1997: (i) a statement of the consolidated and, to the extent prepared, consolidating financial statements stockholders equity for such fiscal quarter for Borrower and its Subsidiaries, prepared by Borrower, each to include: month; (Aii) statements a statement of changes in financial position or statement of cash flowsflows (whichever is required by GAAP) for such month; (Biii) statements of an income and retained earningsstatement for such month; and (Civ) a balance sheets sheet as of the end of such quarterly periodmonth. All such statements shall be prepared on a consolidated and consolidating basis for the Borrower and its Subsidiaries, all in reasonable detail, subject to year-end audit adjustments and without footnotes, shall include appropriate comparisons to the same period for the prior year, and shall be certified by Borrower's president the Senior Vice President, Finance and chief executive officerAdministration, chief financial officer or of the vice president and treasurer to present fairly the financial condition and other information reflected therein and Borrower to have been prepared in accordance with GAAP (consistently applied, subject to year-end audit adjustment)adjustments;
(b) To the Agent, with sufficient copies for distribution by the Agent to each of the Banks, within forty-five (45) days after the end of each fiscal quarter of the Borrower, commencing with the fiscal quarter ending March 31, 1998:
(i) a statement of stockholders equity for such quarter; (ii) a statement of changes in financial position or statement of cash flows (whichever is required by GAAP) for such quarter; (iii) an income statement for such month; and (iv) a balance sheet as of the end of such month. All such statements shall be prepared on a consolidated and consolidating basis for the Borrower and its Subsidiaries, in reasonable detail, subject to year-end audit adjustments and without footnotes, shall include appropriate comparisons to the same period for the prior fiscal year, and shall be certified by the Senior Vice President, Finance and Administration, of the Borrower to have been prepared in accordance with GAAP consistently applied, subject to year-end audit adjustments;
(c) To the Agent, with sufficient copies for distribution by the Agent to each of the Banks, within ninety (90) days after the close of each fiscal year, a copy year of the consolidated andBorrower, to commencing with the extent preparedfiscal year ending March 31, consolidating financial statements 1998, for the Borrower and its Subsidiaries on a consolidated and consolidating basis: (i) a statement of stockholders equity for such fiscal year, each to include: ; (Aii) statements a statement of changes in financial position or statement of cash flows; flows (Bwhichever is required by GAAP) statements of income and retained earnings; and (C) balance sheets as of the end of for such fiscal year; such financial statements to be audited by independent certified public accountant acceptable to the Required Banks, to contain the unqualified opinion of such accountants that such statements have been presented fairly in all material respects in accordance with GAAP, together with a certificate of such accounting firm to the Agent and the Banks:
(1) stating that in the course of the regular examination of the business of Borrower and the Subsidiaries, which examination was conducted by such accounting firm in accordance with GAAP, nothing has come to the attention of such accounting firm which would cause them to believe that a Default or Event of Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default or an Event of Default has occurred and is continuing, a statement as to the nature thereof, (2) setting forth in reasonable detail the calculations made during such period and as of the end of such period in determining compliance with the financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND (3) stating that Agent and the Banks may rely thereon;
(iv) contemporaneously with each monthly, quarterly and year-end financial report required by the foregoing CLAUSES (i), (ii) AND (iii), a certificate of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Parent stating that he or she has individually reviewed the provisions of this Agreement and that a review of the activities of Parent and the Subsidiaries during ) an income statement for such monthly, quarterly and yearly period, as the case may be, has been made by him or her or under his or her supervision, with a view to determining whether Parent has fulfilled all its obligations under this Agreement, and that Parent has observed and performed each undertaking contained in this Agreement and is not in default in the observance or performance of any of the provisions hereof or, if Parent shall be so in default, specifying all such defaults and events of which he may have knowledge;
(v) within ninety (90) days after the close of each fiscal year, a projection and estimate (to the best of Borrower's ability at the time made) of the financial position and the results for, and as of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower and its Subsidiaries, on a consolidated and, to the extent prepared, consolidating basis, prepared by Borrower, such projections to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of each such annual period, all in reasonable detail certified by Borrower's chief financial officer or vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein;
(vi) promptly after they are sent, made available or filed, copies of all reports, proxy statements and financial statements that Borrower sends or makes available to its stockholders and, concurrently with filing, copies of all registration statements and reports that Borrower files with the Securities and Exchange Commission, including, but not limited to, 10Q, 10K and 8K reports, or with any other Governmental Authority where such registration statements and reports may be filed;
(vii) as soon as possible, and in any event within five (5) days after a Responsible Officer of Borrower has knowledge of (A) the occurrence of a Default or an Event of Default, or (B) any default or event of default as defined in any other evidence of Debt or under any other agreement, indenture or other instrument under which such Debt has been issued, whether or not such Debt is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) and such Event of Default, Default or such other default or event of default is not waived on or before two (2) Business Days after it occurs, the statement of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details of such default or event of default, or Default or Event of Default (and if an event under subclause (B) above, a copy of any notice received from the issuer or holder of such Debt) and the action which Borrower proposes to take with respect thereto;
(viii) simultaneously with the delivery of the financial statements under SUBPARAGRAPH 5.01(c)(ii) above, a certificate from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower (A) demonstrating compliance with the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and other accounts receivable and a listing and aging of all accounts payable;
(ix) as soon as available, the annual written report of auditors pertaining to Borrower's and each of its Subsidiaries' internal controls submitted to Borrower by Borrower's independent public accountants in connection with each annual audit made by such accountants;
(x) within thirty (30) days after the close of each fiscal quarter in each fiscal year, a Borrowing Base Certificate of Borrower, appropriately completed by the chief financial officer or the vice president and treasurer of Borrower;
(xi) without duplication of CLAUSE (vii) above, upon delivery thereof pursuant to the Subordinated Lender Documents or the Note Purchase Documents, a copy of any notice given to any Subordinated Lender, Note Purchaser or the Trustee by Borrower or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, a request for payment pursuant to Article 13 of the Indenture;
(xii) prompt written notice of any condition or event which has resulted or might result in (A) a Material Adverse Effect, or (B) a breach of, or noncompliance with, any term, condition or covenant contained herein, or (C) a material breach of, or noncompliance with, any term, condition or covenant of any contract to which Borrower or any Subsidiary is a party or by which it or its property may be bound which contract is material to Borrower and the Subsidiaries as a whole;
(xiii) prompt written notice of any actual or threatened claims, litigation, suits, proceedings or disputes (whether or not purportedly on behalf of Borrower) against or affecting Borrower or any Subsidiary or any of their property which, if adversely determined, would have a Material Adverse Effect (including, without in any way limiting the foregoing, claims, litigation, suits, proceedings or disputes involving monetary amounts in excess of One Million Dollars ($1,000,000) not covered by insurance or self-insurance), or any material labor controversy resulting in or threatening to result in a strike against Borrower or any Subsidiary, or any proposal by any Governmental Authority to acquire any of the material assets or business of Borrower or any Subsidiary, if such strike or acquisition would have a Material Adverse Effect;
(xiv) thirty (30) days' prior written notice of any change in the legal name of Borrower;
(xv) concurrently with filing, copies of IRS Form 5500 filed annually with respect to each Plan of Borrower or any Subsidiary required to file such form, and, promptly after receipt thereof, copies of any notice Borrower or any member of the Controlled Group may receive from the PBGC or the Internal Revenue Service with respect to any Plan; PROVIDED, HOWEVER, that this CLAUSE (xv) shall not apply to notices of general application promulgated by the Department of Labor;
(xvi) as soon as possible, and in any event within thirty (30) days after Borrower or any Subsidiary knows or has reason to know that (A) any Reportable Event has occurred with respect to any Plan, (B) Borrower or any Subsidiary has become obligated to contribute to any Multiemployer Plan; or (C) Borrower or any member of the Controlled Group has incurred withdrawal liability with respect to any Multiemployer Plan, a statement from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details as to such event and the action which Borrower or the affected Subsidiary proposes to take with respect thereto, together with a copy of the notice of any Reportable Event as described in (A) above as given to the PBGC if a copy of such notice is available to Borrower or the affected Subsidiary;
(xvii) within twenty (20) days of Agent's or any Bank's request therefor: (A) a current list of the names, addresses and outstanding debts of all Account Debtors, and (B) a current list of the names, addresses and outstanding amounts due all creditors of Borrower or any Subsidiary;
(xviii) within (10) days after Agent's or any Bank's request therefor, copies of federal income tax returns filed by Borrower and its Subsidiaries;
(xix) thirty (30) days prior to any change in the location of any of Borrower's places of business or of the establishment of any new, or the discontinuance of any existing place of business, written notice of such change, establishment or discontinuance; and
(xx) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Borrower or Borrower's Subsidiaries, and compliance by Borrower with the terms of this Agreement and the other Credit Documents, as Agent or any Bank may from time to time reasonably request.
Appears in 1 contract
Financial Statements and Notices. The Borrower will shall furnish to Agent the Lender the following financial statements, information and each Banknotices:
(ia) within thirty (30) days after the close of each calendar month in each fiscal year, copies of the consolidated and, to the extent prepared, consolidating financial statements for such calendar month for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of income and retained earnings (such income statements to include a comparison between projected income for each location at which Borrower and its Subsidiaries conduct business as set forth in the annual financial projections provided under CLAUSE (v) and actual performance for each location at which Borrower and its Subsidiaries conduct business); and (B) balance sheets as of the end of such monthly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustment);
(ii) within Within forty-five (45) days after the close of each fiscal quarter in each the first three quarters of Borrower's fiscal year, copies of commencing with the consolidated and, to the extent prepared, consolidating financial statements for such fiscal quarter ending September 30, 1998, for the Borrower and its Subsidiaries, prepared by Borrower, each to includesubsidiaries on a consolidated basis: (Ai) statements a statement of cash flowsflows for such quarter; (Bii) statements of an income and retained earningsstatement for such quarter; and (Ciii) a balance sheets sheet as of the end of such quarterly periodquarter. All such statements shall be prepared on a consolidated and consolidating basis for the Borrower and its subsidiaries, all in reasonable detail, subject to year-end audit adjustments and without footnotes, shall include appropriate comparisons to the same period for the prior year, and shall be certified by Borrower's president and chief executive officer, chief the principal financial officer or of the vice president and treasurer to present fairly the financial condition and other information reflected therein and Borrower to have been prepared in accordance with GAAP (consistently applied, subject to year-end audit adjustment)adjustments;
(iiib) within Within ninety (90) days after the close of each Borrower's fiscal year, commencing with the fiscal year ending December 31, 1998 a copy of the consolidated andannual audit report for such year for the Borrower, to including for the extent prepared, consolidating financial statements for Borrower and its Subsidiaries subsidiaries on a consolidated basis (i) a statement of stockholders' equity for such fiscal year; (ii) a statement of cash flows for such fiscal year, each to include: (Aiii) statements of cash flows; (B) statements of an income and retained earnings; statement for such fiscal year, and (Civ) a balance sheets sheet as of the end of such fiscal year; such , together with like internal unaudited consolidating financial statements for the Borrower and its subsidiaries. All statements required by this Section 5.1(b) shall include appropriate comparisons to the prior year. Such consolidated financial statements shall be audited by an independent certified public accountant acceptable to the Required Banks, to contain the unqualified opinion of such accountants that such statements have been presented fairly in all material respects in accordance with GAAP, together with a certificate of such accounting firm to the Agent and the Banks:
(1) stating that in the course of the regular examination of the business of Borrower and the Subsidiaries, which examination was conducted by such accounting firm in accordance with GAAP, nothing has come to the attention of such accounting firm which would cause them to believe that shall include a Default or Event of Default has occurred and is continuing, or if, in the opinion report of such accounting firm, a Default or an Event of Default has occurred and is continuing, a statement which report shall be unqualified as to the nature thereof, (2) setting forth in reasonable detail the calculations made during such period Borrower's status as a going concern and as to the scope of the end of audit performed by such period accounting firm and shall state that such financial statements fairly present in determining compliance with all material respects the financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND (3) stating that Agent position of the Borrower and its subsidiaries as at the dates indicated and the Banks may rely thereonresults of their operations and their cash flows for the periods indicated in conformity with GAAP, consistently applied;
(ivc) contemporaneously with each monthly, quarterly and year-end financial report required by the foregoing CLAUSES (i), (ii) AND (iii), a certificate of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Parent stating that he or she has individually reviewed the provisions of this Agreement and that a review of the activities of Parent and the Subsidiaries during such monthly, quarterly and yearly period, as the case may be, has been made by him or her or under his or her supervision, with a view to determining whether Parent has fulfilled all its obligations under this Agreement, and that Parent has observed and performed each undertaking contained in this Agreement and is not in default in the observance or performance of any of the provisions hereof or, if Parent shall be so in default, specifying all such defaults and events of which he may have knowledge;
(v) within ninety (90) days after the close of each fiscal year, a projection and estimate (to the best of Borrower's ability at the time made) of the financial position and the results for, and as of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower and its Subsidiaries, on a consolidated and, to the extent prepared, consolidating basis, prepared by Borrower, such projections to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of each such annual period, all in reasonable detail certified by Borrower's chief financial officer or vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein;
(vi) promptly Promptly after they are sent, made available or filed, copies of all reports, proxy statements and financial statements that the Borrower sends or makes available to its stockholders and, concurrently with filing, copies of and all registration statements and reports that the Borrower files may file with the Securities and Exchange Commission, including, but not limited to, 10Q, 10K and 8K reports, or with any other Governmental Authority where such registration statements and reports may be filed;
(viid) as soon as possiblePromptly, and but in any no event within later than five (5) days Banking Days after a Responsible Officer the principal financial officer of the Borrower has obtains knowledge of (A) the occurrence of a an Event of Default or an Event of Incipient Default, or (B) any default or event of default as defined in any other evidence of Debt or under any other agreement, indenture or other instrument under which such Debt has been issued, whether or not such Debt is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) and such Event of Default, Default or such other default or event of default is not waived on or before two (2) Business Days after it occurs, provide the Lender with a statement of an authorized officer of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details of such default or event of default, or Default or Event of Default (and if an event under subclause (B) above, a copy of any notice received from the issuer or holder of such Debt) Incipient Default and the action which the Borrower proposes to take with respect thereto;
(viii) simultaneously with the delivery of the financial statements under SUBPARAGRAPH 5.01(c)(ii) above, a certificate from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower (A) demonstrating compliance with the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and other accounts receivable and a listing and aging of all accounts payable;
(ix) as soon as available, the annual written report of auditors pertaining to Borrower's and each of its Subsidiaries' internal controls submitted to Borrower by Borrower's independent public accountants in connection with each annual audit made by such accountants;
(x) within thirty (30) days after the close of each fiscal quarter in each fiscal year, a Borrowing Base Certificate of Borrower, appropriately completed by the chief financial officer or the vice president and treasurer of Borrower;
(xi) without duplication of CLAUSE (vii) above, upon delivery thereof pursuant to the Subordinated Lender Documents or the Note Purchase Documents, a copy of any notice given to any Subordinated Lender, Note Purchaser or the Trustee by Borrower or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, a request for payment pursuant to Article 13 of the Indenture;
(xii) prompt written notice of any condition or event which has resulted or might result in (A) a Material Adverse Effect, or (B) a breach of, or noncompliance with, any term, condition or covenant contained herein, or (C) a material breach of, or noncompliance with, any term, condition or covenant of any contract to which Borrower or any Subsidiary is a party or by which it or its property may be bound which contract is material to Borrower and the Subsidiaries as a whole;
(xiii) prompt written notice of any actual or threatened claims, litigation, suits, proceedings or disputes (whether or not purportedly on behalf of Borrower) against or affecting Borrower or any Subsidiary or any of their property which, if adversely determined, would have a Material Adverse Effect (including, without in any way limiting the foregoing, claims, litigation, suits, proceedings or disputes involving monetary amounts in excess of One Million Dollars ($1,000,000) not covered by insurance or self-insurance), or any material labor controversy resulting in or threatening to result in a strike against Borrower or any Subsidiary, or any proposal by any Governmental Authority to acquire any of the material assets or business of Borrower or any Subsidiary, if such strike or acquisition would have a Material Adverse Effect;
(xiv) thirty (30) days' prior written notice of any change in the legal name of Borrower;
(xv) concurrently with filing, copies of IRS Form 5500 filed annually with respect to each Plan of Borrower or any Subsidiary required to file such form, and, promptly after receipt thereof, copies of any notice Borrower or any member of the Controlled Group may receive from the PBGC or the Internal Revenue Service with respect to any Plan; PROVIDED, HOWEVER, that this CLAUSE (xv) shall not apply to notices of general application promulgated by the Department of Labor;
(xvi) as soon as possible, and in any event within thirty (30) days after Borrower or any Subsidiary knows or has reason to know that (A) any Reportable Event has occurred with respect to any Plan, (B) Borrower or any Subsidiary has become obligated to contribute to any Multiemployer Plan; or (C) Borrower or any member of the Controlled Group has incurred withdrawal liability with respect to any Multiemployer Plan, a statement from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details as to such event and the action which Borrower or the affected Subsidiary proposes to take with respect thereto, together with a copy of the notice of any Reportable Event as described in (A) above as given to the PBGC if a copy of such notice is available to Borrower or the affected Subsidiary;
(xvii) within twenty (20) days of Agent's or any Bank's request therefor: (A) a current list of the names, addresses and outstanding debts of all Account Debtors, and (B) a current list of the names, addresses and outstanding amounts due all creditors of Borrower or any Subsidiary;
(xviii) within (10) days after Agent's or any Bank's request therefor, copies of federal income tax returns filed by Borrower and its Subsidiaries;
(xix) thirty (30) days prior to any change in the location of any of Borrower's places of business or of the establishment of any new, or the discontinuance of any existing place of business, written notice of such change, establishment or discontinuance; and
(xx) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Borrower or Borrower's Subsidiaries, and compliance by Borrower with the terms of this Agreement and the other Credit Documents, as Agent or any Bank may from time to time reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Incontrol Inc)
Financial Statements and Notices. Borrower will furnish shall promptly deliver to Agent and each Bankthe Lender:
(ia) within thirty (30) days after the close end of each calendar month in each fiscal year, copies monthly accounting period of the consolidated and, to the extent prepared, consolidating financial statements for such calendar month for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) consolidated and consolidating statements of income and retained earnings (such income statements to include a comparison between projected income for each location at which cash flow of Borrower and its consolidated Subsidiaries conduct business as set forth in for the annual financial projections provided under CLAUSE (v) portion of Borrower's fiscal year ending therewith, and actual performance for each location at which consolidated and consolidating balance sheets of Borrower and its consolidated Subsidiaries conduct business); and (B) balance sheets as of at the end of such monthly period, setting forth in the case of each such statement in comparative form figures for the corresponding period in the preceding fiscal year, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to changes resulting from normal year-end audit adjustmentadjustments), but not audited;
(iib) within forty-five (45) days after the close end of each fiscal quarter of Borrower, a duly completed and executed Officer's Certificate (in the form provided by Lender to Borrower) certifying Borrower's compliance with the financial and other covenants in this Agreement;
(c) within one hundred twenty (120) days after the end of each fiscal year, copies year of the consolidated and, to the extent prepared, consolidating financial statements for such fiscal quarter for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of cash flows; (B) consolidated and consolidating statements of income and retained earnings; cash flows of Borrower and (C) its consolidated Subsidiaries for such year, and consolidated and consolidating balance sheets of Borrower and its consolidated Subsidiaries as of at the end of such quarterly periodyear, setting forth in each case in comparative form corresponding figures from the preceding annual audit, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP and reasonably satisfactory in scope to the Lender and audited in accordance with generally accepted auditing standards and certified to Borrower by Ernst & Young or other independent public accountants of recognized standing selected by Borrower and reasonably acceptable to the Lender whose certificate shall be unqualified, which financial statements shall be accompanied by a duly completed and executed Officer's Certificate (subject in the form provided by Lender to year-end Borrower) certifying Borrower's compliance with the financial and other covenants in this Agreement;
(d) promptly upon receipt thereof, a copy of each other report submitted to Borrower or any of its consolidated Subsidiaries by its independent public accountants in connection with any annual, interim or special audit adjustmentmade by them of the books of Borrower or any such Subsidiary (including, without limitation, any management report prepared in connection with such accountants' annual audit of Borrower and its consolidated Subsidiaries);
(iii) within ninety (90) days after the close of each fiscal year, a copy of the consolidated and, to the extent prepared, consolidating financial statements for Borrower and its Subsidiaries for such fiscal year, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of such fiscal year; such financial statements to be audited by independent certified public accountant acceptable to the Required Banks, to contain the unqualified opinion of such accountants that such statements have been presented fairly in all material respects in accordance with GAAP, together with a certificate of such accounting firm to the Agent and the Banks:
(1) stating that in the course of the regular examination of the business of Borrower and the Subsidiaries, which examination was conducted by such accounting firm in accordance with GAAP, nothing has come to the attention of such accounting firm which would cause them to believe that a Default or Event of Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default or an Event of Default has occurred and is continuing, a statement as to the nature thereof, (2) setting forth in reasonable detail the calculations made during such period and as of the end of such period in determining compliance with the financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND (3) stating that Agent and the Banks may rely thereon;
(iv) contemporaneously with each monthly, quarterly and year-end financial report required by the foregoing CLAUSES (i), (ii) AND (iii), a certificate of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Parent stating that he or she has individually reviewed the provisions of this Agreement and that a review of the activities of Parent and the Subsidiaries during such monthly, quarterly and yearly period, as the case may be, has been made by him or her or under his or her supervision, with a view to determining whether Parent has fulfilled all its obligations under this Agreement, and that Parent has observed and performed each undertaking contained in this Agreement and is not in default in the observance or performance of any of the provisions hereof or, if Parent shall be so in default, specifying all such defaults and events of which he may have knowledge;
(v) within ninety (90) days after the close of each fiscal year, a projection and estimate (to the best of Borrower's ability at the time made) of the financial position and the results for, and as of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower and its Subsidiaries, on a consolidated and, to the extent prepared, consolidating basis, prepared by Borrower, such projections to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of each such annual period, all in reasonable detail certified by Borrower's chief financial officer or vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein;
(vie) promptly after they are sent, made available or filedupon transmission thereof, copies of all reportssuch financial statements, proxy statements statements, notices and financial statements that reports as Borrower sends or makes available shall send to its stockholders andpublic stockholders, concurrently with filingif any, and copies of all registration statements and all reports that which Borrower files with the Securities and Exchange Commission, including, but not limited to, 10Q, 10K and 8K reports, SEC (or with any other Governmental Authority where such registration statements and reports may be filedgovernmental body or agency succeeding to the functions of the SEC);
(viif) as soon as possible, and in any event within five (5) days after a Responsible Officer of Borrower has promptly upon obtaining knowledge of (A) the occurrence of a Default or an Event of Default, or (B) any default or event an Officer's Certificate specifying the nature and period of default as defined in any other evidence of Debt or under any other agreement, indenture or other instrument under which such Debt has been issued, whether or not such Debt is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) existence thereof and such Event of Default, Default or such other default or event of default is not waived on or before two (2) Business Days after it occurs, what action the statement of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details of such default or event of default, or Default or Event of Default (and if an event under subclause (B) above, a copy of any notice received from the issuer or holder of such Debt) and the action which Borrower proposes to take with respect thereto;
(viiig) simultaneously with immediately upon becoming aware that the delivery of the financial statements under SUBPARAGRAPH 5.01(c)(ii) above, a certificate from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower (A) demonstrating compliance with the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and other accounts receivable and a listing and aging of all accounts payable;
(ix) as soon as available, the annual written report of auditors pertaining to Borrower's and each of its Subsidiaries' internal controls submitted to Borrower by Borrower's independent public accountants in connection with each annual audit made by such accountants;
(x) within thirty (30) days after the close of each fiscal quarter in each fiscal year, a Borrowing Base Certificate of Borrower, appropriately completed by the chief financial officer or the vice president and treasurer of Borrower;
(xi) without duplication of CLAUSE (vii) above, upon delivery thereof pursuant to the Subordinated Lender Documents or the Note Purchase Documents, a copy holder of any notice given to any Subordinated Lender, Note Purchaser or the Trustee by Borrower evidence of indebtedness or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, a request for payment pursuant to Article 13 of the Indenture;
(xii) prompt written notice security of any condition Credit Party has given notice or event which has resulted or might result in (A) a Material Adverse Effect, or (B) a breach of, or noncompliance with, taken any term, condition or covenant contained herein, or (C) a material breach of, or noncompliance with, any term, condition or covenant of any contract to which Borrower or any Subsidiary is a party or by which it or its property may be bound which contract is material to Borrower and the Subsidiaries as a whole;
(xiii) prompt written notice of any actual or threatened claims, litigation, suits, proceedings or disputes (whether or not purportedly on behalf of Borrower) against or affecting Borrower or any Subsidiary or any of their property which, if adversely determined, would have a Material Adverse Effect (including, without in any way limiting the foregoing, claims, litigation, suits, proceedings or disputes involving monetary amounts in excess of One Million Dollars ($1,000,000) not covered by insurance or self-insurance), or any material labor controversy resulting in or threatening to result in a strike against Borrower or any Subsidiary, or any proposal by any Governmental Authority to acquire any of the material assets or business of Borrower or any Subsidiary, if such strike or acquisition would have a Material Adverse Effect;
(xiv) thirty (30) days' prior written notice of any change in the legal name of Borrower;
(xv) concurrently with filing, copies of IRS Form 5500 filed annually other action with respect to each Plan a claimed default or event of Borrower or any Subsidiary required to file such form, and, promptly after receipt thereof, copies of any notice Borrower or any member of the Controlled Group may receive from the PBGC or the Internal Revenue Service default with respect to any Plan; PROVIDEDsuch indebtedness or security or event which, HOWEVERwith the giving of notice or passage of time, that this CLAUSE (xv) shall not apply to notices of general application promulgated by the Department of Labor;
(xvi) as soon as possibleor both, and in any event within thirty (30) days after Borrower or any Subsidiary knows or has reason to know that (A) any Reportable Event has occurred would constitute a default with respect to any Plansuch indebtedness or security, (B) Borrower an Officer's Certificate specifying the notice given or any Subsidiary has become obligated to contribute to any Multiemployer Plan; or (C) Borrower or any member action taken by such holder and the nature of the Controlled Group has incurred withdrawal liability with respect to any Multiemployer Plan, a statement from the president and chief executive officer, the chief financial officer claimed default or the vice president and treasurer of Borrower setting forth details as to such event and the what action which Borrower such Credit Party is taking or the affected Subsidiary proposes to take with respect thereto, together with a copy provided that in each and every case noted above the aggregate outstanding principal balance of the indebtedness or security involved (or all such indebtedness or securities combined) must equal or exceed $250,000;
(h) promptly after (x) the occurrence thereof, notice of the institution by any Person of any action, suit or proceeding or any governmental investigation or any arbitration, before any court or arbitrator or any governmental or administrative body, agency, or official, against any Credit Party, or any material property of any Credit Party, in which the amount in controversy is stated to be more than $250,000 individually or in the aggregate or, where no amount in controversy is stated, which might, if adversely determined, have a Material Adverse Effect or (y) the receipt of actual knowledge thereof, notice of the threat of any such action, suit, proceeding, investigation or arbitration, each such notice under this subsection to specify, if known, the amount of damages being claimed or other relief being sought, the nature of the claim, the Person instituting the action, suit, proceeding, investigation or arbitration, and any other significant features of the claim;
(i) promptly after learning thereof, notice of the occurrence of any Reportable Event as described or any other act or condition arising in (A) above as given to connection with any Plan which Borrower believes might constitute grounds for the termination thereof by the PBGC if or for the appointment by any appropriate United States district court of a copy of trustee to administer such notice is available to Borrower or the affected SubsidiaryPlan;
(xviij) within twenty on or before May 1st of each calendar year (20) days commencing May 1, 1998), a personal financial statement for Purchaser as of Agent's or any Bank's request therefor: (A) a current list and for the 12-month period ending on December 31 of the namesimmediately preceding calendar year, addresses which statement shall include a balance sheet and outstanding debts of all Account Debtors, income statement and (B) a current list of shall be in form and substance satisfactory to the names, addresses and outstanding amounts due all creditors of Borrower or any Subsidiary;
(xviii) within (10) days after Agent's or any Bank's request therefor, copies of federal income tax returns filed by Borrower and its Subsidiaries;
(xix) thirty (30) days prior to any change in the location of any of Borrower's places of business or of the establishment of any new, or the discontinuance of any existing place of business, written notice of such change, establishment or discontinuanceLender; and
(xxk) Such with reasonable promptness, such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations operations, management, business, properties or financial condition (financial of any Credit Party or otherwise) of Borrower or Borrower's Subsidiaries, and compliance by Borrower with the terms of this Agreement and the other Credit Documents, as Agent relating to any Collateral or any Bank Plan as the Lender may reasonably request in writing from time to time reasonably requesttime.
Appears in 1 contract
Samples: Loan Agreement (Bull Run Corp)
Financial Statements and Notices. Borrower will Housecall shall furnish directly to the Agent and each BankBank the following financial statements, information and notices:
(ia) As soon as available and in any event within thirty (30) 90 days after the close end of each calendar month fiscal year of Housecall or such longer period as may be the subject of an extension granted by the Securities and Exchange Commission (but in each fiscal year, copies of the consolidated and, to the extent prepared, consolidating financial statements for such calendar month for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of income and retained earnings (such income statements to include a comparison between projected income for each location at which Borrower and its Subsidiaries conduct business as set forth in the annual financial projections provided under CLAUSE (v) and actual performance for each location at which Borrower and its Subsidiaries conduct business); and (B) balance sheets as of no event later than 120 days after the end of such monthly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustment);
(ii) within forty-five (45) days after the close of each fiscal quarter in each fiscal year, copies of the consolidated and, to the extent prepared, consolidating financial statements for such fiscal quarter for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of such quarterly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustment);
(iii) within ninety (90) days after the close of each fiscal year, a copy consolidated and consolidating balance sheet of the consolidated and, to the extent prepared, consolidating financial statements for Borrower Housecall and its Subsidiaries for such fiscal year, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of such fiscal year and the related consolidated and consolidating statements of income and consolidated statement of cash flows for such fiscal year; , setting forth in each case in comparative form the figures for the previous fiscal year, and, with respect to such financial information for Housecall, such consolidated statements to shall be audited statements by Ernst & Young or other independent certified public accountant acceptable to the Required Banks, to contain the accountants of nationally recognized standing and containing an unqualified opinion report of such accountants that such statements have been presented fairly in all material respects in accordance with GAAP, together with a certificate of such accounting firm to the Agent and the Banks:
(1) stating that in the course of the regular examination of the business of Borrower and the Subsidiaries, which examination was conducted by such accounting firm in accordance with GAAP, nothing has come to the attention of such accounting firm which would cause them to believe that a Default or Event of Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default or an Event of Default has occurred and is continuing, a statement other than as to the nature thereofconsolidating financial statements);
(b) As soon as available and in any event within 45 days after the end of each of the first 3 fiscal quarters of each fiscal year of Housecall or such longer period as may be the subject of an extension granted by the Securities and Exchange Commission (but in no event later than 75 days after the end of such fiscal quarter), (2) setting forth in reasonable detail the calculations made during such period an unaudited consolidated and consolidating balance sheet of Housecall and its Subsidiaries as of the end of such period in determining compliance with fiscal quarter and the financial covenants set related unaudited consolidated and consolidating statement of income and consolidated statement of cash flows for such quarter, setting forth in SUBPARAGRAPHS 5.01(i)each case in comparative form the figures for the corresponding quarter of the previous fiscal year and setting forth all variances from budget, 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND all certified (3) stating that Agent subject to normal year-end adjustments and the Banks may rely thereonabsence of certain notes) as to fairness of presentation, generally accepted accounting principles and consistency by the chief financial officer of Housecall;
(ivc) contemporaneously with As soon as available and in any event within 45 days after the end of each monthlymonth, quarterly an unaudited consolidated and year-consolidating balance sheet of Housecall and its Subsidiaries as of the end financial report required of such month and the related 60 unaudited consolidated and consolidating statements of income and consolidated statement of cash flows for such month, setting forth in each case in comparative form the figures for the corresponding month of the previous fiscal year and setting forth all variances from budget, all certified (subject to normal year- end adjustments and the absence of certain notes) as to fairness of presentation, generally accepted accounting principles and consistency by the foregoing CLAUSES chief financial officer of Housecall;
(id) Simultaneously with the delivery of each set of financial statements referred to in subsections (a), (iib) AND and (iii)c) of this Section, a certificate of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Parent Housecall (i) stating that he or she has individually reviewed the provisions of this Agreement and that a review of the activities of Parent and the Subsidiaries during such monthlywhether, quarterly and yearly period, as the case may be, has been made by him or her or under his or her supervision, with a view to determining whether Parent has fulfilled all its obligations under this Agreement, and that Parent has observed and performed each undertaking contained in this Agreement and is not in default in the observance or performance of any of the provisions hereof or, if Parent shall be so in default, specifying all such defaults and events of which he may have knowledge;
(v) within ninety (90) days after the close of each fiscal year, a projection and estimate (to the best of Borrowersuch officer's ability at knowledge after due inquiry, there exists on the time made) date of the financial position and the results for, and as of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower and its Subsidiaries, on a consolidated such certificate any Default and, to the extent preparedif any Default then exists, consolidating basis, prepared by Borrower, such projections to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of each such annual period, all in reasonable detail certified by Borrower's chief financial officer or vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein;
(vi) promptly after they are sent, made available or filed, copies of all reports, proxy statements and financial statements that Borrower sends or makes available to its stockholders and, concurrently with filing, copies of all registration statements and reports that Borrower files with the Securities and Exchange Commission, including, but not limited to, 10Q, 10K and 8K reports, or with any other Governmental Authority where such registration statements and reports may be filed;
(vii) as soon as possible, and in any event within five (5) days after a Responsible Officer of Borrower has knowledge of (A) the occurrence of a Default or an Event of Default, or (B) any default or event of default as defined in any other evidence of Debt or under any other agreement, indenture or other instrument under which such Debt has been issued, whether or not such Debt is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) and such Event of Default, Default or such other default or event of default is not waived on or before two (2) Business Days after it occurs, the statement of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth the details of such default or event of default, or Default or Event of Default (and if an event under subclause (B) above, a copy of any notice received from the issuer or holder of such Debt) thereof and the action which Borrower proposes to take with respect thereto;
(viii) simultaneously with the delivery of the financial statements under SUBPARAGRAPH 5.01(c)(ii) above, a certificate from the president and chief executive officer, the chief financial officer that Housecall is taking or the vice president and treasurer of Borrower (A) demonstrating compliance with the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and other accounts receivable and a listing and aging of all accounts payable;
(ix) as soon as available, the annual written report of auditors pertaining to Borrower's and each of its Subsidiaries' internal controls submitted to Borrower by Borrower's independent public accountants in connection with each annual audit made by such accountants;
(x) within thirty (30) days after the close of each fiscal quarter in each fiscal year, a Borrowing Base Certificate of Borrower, appropriately completed by the chief financial officer or the vice president and treasurer of Borrower;
(xi) without duplication of CLAUSE (vii) above, upon delivery thereof pursuant to the Subordinated Lender Documents or the Note Purchase Documents, a copy of any notice given to any Subordinated Lender, Note Purchaser or the Trustee by Borrower or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, a request for payment pursuant to Article 13 of the Indenture;
(xii) prompt written notice of any condition or event which has resulted or might result in (A) a Material Adverse Effect, or (B) a breach of, or noncompliance with, any term, condition or covenant contained herein, or (C) a material breach of, or noncompliance with, any term, condition or covenant of any contract to which Borrower or any Subsidiary is a party or by which it or its property may be bound which contract is material to Borrower and the Subsidiaries as a whole;
(xiii) prompt written notice of any actual or threatened claims, litigation, suits, proceedings or disputes (whether or not purportedly on behalf of Borrower) against or affecting Borrower or any Subsidiary or any of their property which, if adversely determined, would have a Material Adverse Effect (including, without in any way limiting the foregoing, claims, litigation, suits, proceedings or disputes involving monetary amounts in excess of One Million Dollars ($1,000,000) not covered by insurance or self-insurance), or any material labor controversy resulting in or threatening to result in a strike against Borrower or any Subsidiary, or any proposal by any Governmental Authority to acquire any of the material assets or business of Borrower or any Subsidiary, if such strike or acquisition would have a Material Adverse Effect;
(xiv) thirty (30) days' prior written notice of any change in the legal name of Borrower;
(xv) concurrently with filing, copies of IRS Form 5500 filed annually with respect to each Plan of Borrower or any Subsidiary required to file such form, and, promptly after receipt thereof, copies of any notice Borrower or any member of the Controlled Group may receive from the PBGC or the Internal Revenue Service with respect to any Plan; PROVIDED, HOWEVER, that this CLAUSE (xv) shall not apply to notices of general application promulgated by the Department of Labor;
(xvi) as soon as possible, and in any event within thirty (30) days after Borrower or any Subsidiary knows or has reason to know that (A) any Reportable Event has occurred with respect to any Plan, (B) Borrower or any Subsidiary has become obligated to contribute to any Multiemployer Plan; or (C) Borrower or any member of the Controlled Group has incurred withdrawal liability with respect to any Multiemployer Plan, a statement from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details as to such event and the action which Borrower or the affected Subsidiary proposes to take with respect thereto, together with a copy (ii) stating whether, since the date of the notice most recent financial statements previously delivered pursuant to subsection (a) or (b) of any Reportable Event as described this Section, there has been a change in (A) above as given the generally accepted accounting principles applied in preparing the financial statements then being delivered from those applied in preparing the most recent audited financial statements so delivered which is material to the PBGC if a copy financial statements then being delivered, (iii) furnishing calculations demonstrating the compliance by Housecall of the covenants contained in Sections 7.19 , 7.20, 7.21, 7.22, 7.23, 7.24 and 7.25 hereof, (iv) attaching management's summary of the results contained in such notice is available to Borrower or financial statements, and (v) listing all Subsidiaries of Housecall (other than Material Subsidiaries) and setting forth the affected total value of assets owned by each such Subsidiary;
(xviie) within twenty Simultaneously with the delivery of each set of financial statements referred to in clause (20a) days of Agent's or any Bank's request therefor: (A) above, a current list statement of the names, addresses and outstanding debts firm of all Account Debtors, and (B) a current list of independent public accountants which reported on such statements whether anything has come to their attention to cause them to believe that any Default existed on the names, addresses and outstanding amounts due all creditors of Borrower or any Subsidiary;
(xviii) within (10) days after Agent's or any Bank's request therefor, copies of federal income tax returns filed by Borrower and its Subsidiaries;
(xix) thirty (30) days prior to any change in the location of any of Borrower's places of business or of the establishment of any new, or the discontinuance of any existing place of business, written notice date of such change, establishment or discontinuance; and
(xx) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Borrower or Borrower's Subsidiaries, and compliance by Borrower with the terms of this Agreement and the other Credit Documents, as Agent or any Bank may from time to time reasonably request.;
Appears in 1 contract
Financial Statements and Notices. Borrower will Housecall shall furnish directly to the Agent and each BankBank the following financial statements, information and notices:
(ia) As soon as available and in any event within thirty (30) 90 days after the close end of each calendar month fiscal year of Housecall or such longer period as may be the subject of an extension granted by the Securities and Exchange Commission (but in each no event later than 120 days after the end of such fiscal year), copies a consolidated and consolidating balance sheet of the consolidated and, to the extent prepared, consolidating financial statements for such calendar month for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of income and retained earnings (such income statements to include a comparison between projected income for each location at which Borrower Housecall and its Subsidiaries conduct business as set forth in the annual financial projections provided under CLAUSE (v) and actual performance for each location at which Borrower and its Subsidiaries conduct business); and (B) balance sheets as of the end of such monthly periodfiscal year and the related consolidated and consolidating statements of income and consolidated statement of cash flows for such fiscal year, all setting forth in reasonable detaileach case in comparative form the figures for the previous fiscal year, certified and, with respect to such financial information for Housecall, such consolidated statements shall be audited statements by Borrower's president Ernst & Young or other independent public accountants of nationally recognized standing and chief executive officer, chief containing an unqualified report of such accountants (other than as to the consolidating financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustmentstatements);
(iib) As soon as available and in any event within forty-five (45) 45 days after the close end of each of the first 3 fiscal quarters of each fiscal quarter year of Housecall or such longer period as may be the subject of an extension granted by the Securities and Exchange Commission (but in each fiscal year, copies no event later than 75 days after the end of the consolidated and, to the extent prepared, consolidating financial statements for such fiscal quarter for Borrower quarter), an unaudited consolidated and consolidating balance sheet of Housecall and its Subsidiaries, prepared by Borrower, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets Subsidiaries as of the end of such quarterly periodfiscal quarter and the related unaudited consolidated and consolidating statement of income and consolidated statement of cash flows for such quarter, setting forth in each case in comparative form the figures for the corresponding quarter of the previous fiscal year and setting forth all variances from budget, all in reasonable detailcertified (subject to normal year-end adjustments and the absence of certain notes) as to fairness of presentation, certified generally accepted accounting principles and consistency by Borrower's president and chief executive officer, the chief financial officer or of Housecall.
(c) As soon as available and in any event within 45 days after the vice president end of each month, an unaudited consolidated and treasurer to present fairly consolidating balance sheet of Housecall and its Subsidiaries as of the financial condition end of such month and other information reflected therein the related unaudited consolidated and to have been prepared consolidating statements of income and consolidated statement of cash flows for such month, setting forth in accordance with GAAP each case in comparative form the figures for the corresponding month of the previous fiscal year and setting forth all variances from budget, all certified (subject to year-normal year- end audit adjustment)adjustments and the absence of certain notes) as to fairness of presentation, generally accepted accounting principles and consistency by the chief financial officer of Housecall;
(d) Simultaneously with the delivery of each set of financial statements referred to in subsections (a), (b) and (c) of this SECTION, a certificate of the chief financial officer of Housecall (i) stating whether, to the best of such officer's knowledge after due inquiry, there exists on the date of such certificate any Default and, if any Default then exists, setting forth the details thereof and the action that Housecall is taking or proposes to take with respect thereto, (ii) stating whether, since the date of the most recent financial statements previously delivered pursuant to subsection (a) or (b) of this SECTION, there has been a change in the generally accepted accounting principles applied in preparing the financial statements then being delivered from those applied in preparing the most recent audited financial statements so delivered which is material to the financial statements then being delivered, (iii) furnishing calculations demonstrating the compliance by Housecall of the covenants contained in SECTIONs 7.19 , 7.20, 7.21, and 7.22 hereof, (iv) attaching management's summary of the results contained in such financial statements, and (v) listing all Subsidiaries of Housecall (other than Material Subsidiaries) and setting forth the total value of assets owned by each such Subsidiary;
(e) Simultaneously with the delivery of each set of financial statements referred to in clause (a) above, a statement of the firm of independent public accountants which reported on such statements whether anything has come to their attention to cause them to believe that any Default existed on the date of such statements;
(f) As soon as available and in any event within ninety (90) days after the close end of each fiscal yearyear of Housecall, a copy financial forecasts and projections of the consolidated and, to the extent prepared, consolidating financial statements for Borrower Housecall and its Subsidiaries for such each fiscal year, each to include: (A) statements quarter in the first succeeding fiscal year and financial forecasts and projections of cash flows; (B) statements of income Housecall and retained earnings; its Subsidiaries for the second and (C) balance sheets as of the end of such third succeeding fiscal year; such financial statements to be audited by independent certified public accountant acceptable to the Required Banks, to contain the unqualified opinion of such accountants that such statements have been presented fairly in all material respects in accordance with GAAP, years together with a certificate of the chief financial officer of Housecall setting forth that such accounting firm to the Agent financial forecasts and the Banks:
projections (1i) stating that have in the course of the regular examination of the business of Borrower and the Subsidiaries, which examination was conducted by such accounting firm all material respects been prepared in accordance with GAAPHousecall's normal accounting procedures on the basis of reasonable assumptions, nothing has come (ii) fairly represent in all material respects the expectation of Housecall as to the attention matters covered thereby, (iii) were prepared by Housecall in good faith 67 and (iv) remain unchanged in all material respects as of the date delivered;
(g) Within five (5) Business Days after any Authorized Officer obtains knowledge of any Default, if such accounting firm which would cause them to believe that a Default or Event of Default has occurred and is continuing, or if, in the opinion of such accounting firm, a Default or an Event of Default has occurred and is then continuing, a statement as to certificate of the nature thereof, (2) chief financial officer of Housecall setting forth in reasonable detail the calculations made during such period and as of the end of such period in determining compliance with the financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND (3) stating that Agent details thereof and the Banks may rely thereonaction which Housecall is taking or proposes to take with respect thereto;
(ivh) contemporaneously Contemporaneously with each monthly, quarterly and year-end financial report required by the foregoing CLAUSES paragraph (i), (ii) AND (iiia), a certificate of the president schedule identifying all insurance (including any self-insurance programs) then in effect and chief executive officer, the chief financial officer or the vice president and treasurer of Parent stating that he or she has individually reviewed the provisions of this Agreement and that a review of the activities of Parent and the Subsidiaries during certificates evidencing such monthly, quarterly and yearly period, as the case may be, has been made by him or her or under his or her supervision, with a view to determining whether Parent has fulfilled all its obligations under this Agreement, and that Parent has observed and performed each undertaking contained in this Agreement and is not in default in the observance or performance of any of the provisions hereof or, if Parent shall be so in default, specifying all such defaults and events of which he may have knowledgeinsurance;
(vi) within ninety (90) days after the close of each fiscal year, a projection and estimate (to the best of Borrower's ability at the time made) of the financial position and the results for, and as of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower and its Subsidiaries, on a consolidated and, to the extent prepared, consolidating basis, prepared by Borrower, such projections to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of each such annual period, all in reasonable detail certified by Borrower's chief financial officer or vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein;
(vi) promptly Promptly after they are released, sent, made available or filed, copies of all press releases, material reports, proxy statements and financial statements that Borrower Housecall sends or makes available to its stockholders and, concurrently with filing, copies of generally and all registration statements and reports that Borrower Housecall files with the Securities and Exchange Commission, including, but not limited to, 10Q, 10K and 8K reports, ; copies of all such reports provided that include the information required to be provided pursuant to SECTION 6.2(a) or with any other Governmental Authority where 6.2(b) shall to that extent be deemed to satisfy such registration statements and reports may be filedrequirements;
(viij) As soon as available, any written report involving the internal controls of Housecall and its Subsidiaries submitted to Housecall by its independent public accountants in connection with their annual or interim special audit of the financial condition of Housecall and its Subsidiaries;
(k) Promptly but in no event later than five (5) calendar days after an Authorized Officer learns thereof, written notice of any actual or threatened claim, litigation, suit, investigation, proceeding or dispute against or affecting Housecall or any of its Subsidiaries, which: (i) if determined adversely, could reasonably be expected to have a Material Adverse Effect; (ii) involves a monetary amount in excess of one million Dollars ($1,000,000) and is not covered by insurance; (iii) is reasonably expected to result in a strike, work stoppage, boycott, shutdown or other labor disruption against or involving Housecall or any of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect; (iv) could reasonably be expected materially to limit, prohibit or restrict the manner in which Housecall or any of its Subsidiaries currently conducts its business; or (v) concerns any alleged violation by Housecall or any of its Subsidiaries, or any of their respective predecessors, of any Environmental Law, where there exists a reasonable possibility that such violation could materially affect any of the properties or the operations of Housecall or such Subsidiary or any alleged material 68 noncompliance of any of the properties or the operations of Housecall or such Subsidiary therewith;
(l) As soon as possible, and in any event within five twenty (520) days calendar days, after a Responsible an Authorized Officer of Borrower has knowledge of (A) the occurrence of a Default or an Event of Default, or (B) learns that any default or event of default as defined in any other evidence of Debt or under any other agreement, indenture or other instrument under which such Debt has been issued, whether or not such Debt is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) and such Event of Default, Default or such other default or event of default is not waived on or before two (2) Business Days after it occurs, the statement of the president following events has occurred, such Authorized Officer shall deliver to the Agent a statement describing such event and chief executive officer, any action that the chief financial officer or the vice president and treasurer of Borrower setting forth details of such default or event of default, or Default or Event of Default (and if an event under subclause (B) above, a copy of any notice received from the issuer or holder of such Debt) and the action which Borrower proposes Co-Borrowers propose to take with respect thereto;
: (viiii) simultaneously any Reportable Event with respect to a Pension Plan; (ii) the delivery institution of the financial statements under SUBPARAGRAPH 5.01(c)(ii) above, a certificate from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower (A) demonstrating compliance with the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and other accounts receivable and a listing and aging of all accounts payable;
(ix) as soon as available, the annual written report of auditors pertaining to Borrower's and each of its Subsidiaries' internal controls submitted to Borrower by Borrower's independent public accountants in connection with each annual audit made by such accountants;
(x) within thirty (30) days after the close of each fiscal quarter in each fiscal year, a Borrowing Base Certificate of Borrower, appropriately completed proceedings by the chief financial officer PBGC to terminate any Pension Plan or the vice president and treasurer to have a trustee appointed to administer such plan, or receipt of Borrower;
(xi) without duplication of CLAUSE (vii) above, upon delivery thereof pursuant to the Subordinated Lender Documents or the Note Purchase Documents, a copy notice of any notice given intention by the PBGC to any Subordinated Lender, Note Purchaser or do so; (iii) the Trustee by Borrower or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, filing of a request for payment pursuant to Article 13 of the Indenture;
(xii) prompt written notice of any condition or event which has resulted or might result in (A) a Material Adverse Effect, or (B) minimum funding waiver by a breach of, or noncompliance with, any term, condition or covenant contained herein, or (C) a material breach of, or noncompliance with, any term, condition or covenant of any contract to which Co-Borrower or any Subsidiary is a party or by which it or its property may be bound which contract is material to Borrower and the Subsidiaries as a whole;
(xiii) prompt written notice of any actual or threatened claims, litigation, suits, proceedings or disputes (whether or not purportedly on behalf of Borrower) against or affecting Borrower or any Subsidiary or any of their property which, if adversely determined, would have a Material Adverse Effect (including, without in any way limiting the foregoing, claims, litigation, suits, proceedings or disputes involving monetary amounts in excess of One Million Dollars ($1,000,000) not covered by insurance or self-insurance), or any material labor controversy resulting in or threatening to result in a strike against Borrower or any Subsidiary, or any proposal by any Governmental Authority to acquire any of the material assets or business of Borrower or any Subsidiary, if such strike or acquisition would have a Material Adverse Effect;
(xiv) thirty (30) days' prior written notice of any change in the legal name of Borrower;
(xv) concurrently with filing, copies of IRS Form 5500 filed annually with respect to each Plan of Borrower or any Subsidiary required to file such form, and, promptly after receipt thereof, copies of any notice Borrower or any member of the Controlled Group may receive from under section 412 of the PBGC or the Internal Revenue Service Code with respect to any PlanPension Plan or any employee pension benefit plan (as defined in section 3(2) of ERISA) maintained by any ERISA Affiliate; PROVIDED, HOWEVER, that this CLAUSE or (xviv) shall not apply to notices the receipt by any Co-Borrower or any other member of general application promulgated by the Department Controlled Group of Labora material demand for withdrawal liability under section 4219 or 4202 of ERISA;
(xvim) as As soon as possible, and in any event within thirty (30) days after Borrower or any Subsidiary knows or has reason to know that (A) any Reportable Event has occurred with respect to any Plan, (B) Borrower or any Subsidiary has become obligated to contribute to any Multiemployer Plan; or (C) Borrower or any member of the Controlled Group has incurred withdrawal liability with respect to any Multiemployer Plan, a statement from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details as to such event and the action which Borrower or the affected Subsidiary proposes to take with respect thereto, together with a copy of the notice of any Reportable Event as described in (A) above as given to the PBGC if a copy of such notice is available to Borrower or the affected Subsidiary;
(xvii) within twenty (20) days of Agent's or any Bank's request therefor: (A) a current list of the names, addresses and outstanding debts of all Account Debtors, and (B) a current list of the names, addresses and outstanding amounts due all creditors of Borrower or any Subsidiary;
(xviii) within ten (10) days after receipt of a written request from the Agent or the Majority Banks, the Co-Borrowers shall deliver to the Agent's , as requested by either the Agent or the Majority Banks: (i) a copy of any Employee Benefit Plan or summary description of such plan; (ii) a copy of any report, description or other document filed with any governmental agency with respect to any Employee Benefit Plan or any Bank's plan (as defined in section 3(3) of ERISA) maintained by any Co-Borrower or any ERISA Affiliate; or (iii) a copy of any notice, determination letter, ruling or opinion-that any Co-Borrower or any other Controlled Group member receives from any governmental agency with respect to any Employee Benefit Plan;
(n) Within a reasonable time after a request therefor, copies of federal income tax returns filed by Borrower and its Subsidiaries;
(xix) thirty (30) days prior to any change in such other information as the location of any of Borrower's places of business or of the establishment of any new, Agent or the discontinuance of any existing place of businessMajority Banks may reasonably request regarding Housecall, written notice of such changeits Subsidiaries or their assets, establishment operations, financial condition or discontinuancemanagement; and
(xxo) Such other instrumentsWithin fifteen (15) days from the end of each calendar month, agreementscommencing on November 15, certificates1996, opinions, statements, documents a report setting forth the month end balance as of the end of such calendar month in each deposit account maintained by Housecall and information relating to the operations or condition (financial or otherwise) each of Borrower or Borrower's its Subsidiaries, and compliance by Borrower with the terms of this Agreement and the other Credit Documents, as Agent or any Bank may from time to time reasonably request.
Appears in 1 contract
Financial Statements and Notices. The Borrower will shall furnish to Agent the following financial statements, information and each Banknotices:
(ia) within thirty (30) days after To the close of Agent, with sufficient copies for distribution by the Agent to each calendar month in each fiscal year, copies of the consolidated andBanks, to the extent prepared, consolidating financial statements for such calendar month for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of income and retained earnings (such income statements to include a comparison between projected income for each location at which Borrower and its Subsidiaries conduct business as set forth in the annual financial projections provided under CLAUSE (v) and actual performance for each location at which Borrower and its Subsidiaries conduct business); and (B) balance sheets as of the end of such monthly period, all in reasonable detail, certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP (subject to year-end audit adjustment);
(ii) within forty-five (45) days after the close end of each month, commencing with the month ending May 31, 1999: an unaudited monthly Board of Director package which should include, but not be limited to, (i) a statement of revenues and EBITDA and EBITDAR, (ii) a status report with respect to any negotiations regarding properties for sale, and (iii) a statement of actual versus budgeted Capital Expenditures based upon the Capital Expenditures Budget for such fiscal year; provided, however that after Borrower's first mandatory permanent reduction of the Loans in the principal amount of Twelve Million ($12,000,000) in accordance with SECTION 2.3(C)(IV) hereof, Borrower shall only be required to deliver such Capital Expenditure statements within forty-five (45) days after the end of each fiscal quarter in each fiscal year, copies of the Borrower. All such statements shall be prepared on a consolidated and, to and consolidating basis for the extent prepared, consolidating financial statements for such fiscal quarter for Borrower and its Subsidiaries, prepared by Borrower, each to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of such quarterly period, all in reasonable detail, subject to year-end audit adjustments and without footnotes, shall include appropriate comparisons to the same period for the prior year, as well as actual versus budgeted comparisons, and shall be certified by Borrower's president and chief executive officer, chief financial officer or the vice president and treasurer to present fairly Chief Financial Officer of the financial condition and other information reflected therein and Borrower to have been prepared in accordance with GAAP (consistently applied, subject to year-end audit adjustment)adjustments;
(iiib) To the Agent, with sufficient copies for distribution by the Agent to each of the Banks, within forty-five (45) days after the end of each fiscal quarter of the Borrower, commencing with the fiscal quarter ending June 30, 1999, the Company's most recent report on Form 10-Q filed with the Securities and Exchange Commission. All such statements shall be prepared on a consolidated and consolidating basis for the Borrower and its Subsidiaries, in reasonable detail, subject to year-end audit adjustments and without footnotes, shall include appropriate comparisons to the same period for the prior year, and shall be certified by the Senior Vice President, Finance and Administration, of the Borrower to have been prepared in accordance with GAAP consistently applied, subject to year-end audit adjustments;
(c) To the Agent, with sufficient copies for distribution by the Agent to each of the Banks, within ninety (90) days after the close of each fiscal year, a copy year of the consolidated andBorrower, to commencing with the extent preparedfiscal year ending March 31, consolidating financial statements 1999, for the Borrower and its Subsidiaries for such on a consolidated and consolidating basis the Borrower's most recent report on Form 10-K filed with the Securities and Exchange Commission. All statements required by this SECTION 7.2(C) shall include appropriate comparisons to the prior fiscal year, each . Such consolidated financial statements shall be audited by KPMG Peat Marwick LLP or another independent certified public accounting firm acceptable to include: (A) statements of cash flows; (B) statements of income the Majority Banks and retained earnings; and (C) balance sheets as of the end shall include a report of such fiscal year; accounting firm, which report shall be unqualified and without explanatory or similar paragraphs and shall state that such financial statements to be audited by independent certified public accountant acceptable to fairly present the Required Banks, to contain financial position of the unqualified opinion Borrower and its Subsidiaries as at the dates indicated and the results of such accountants that such statements have been presented fairly their operations and their cash flows for the periods indicated in all material respects in accordance conformity with GAAP, together with a certificate of such consistently applied. Such accounting firm shall also certify to the Agent and the Banks:
(1) stating Banks that in the course of the regular annual examination of the business of the Borrower and the its Subsidiaries, which examination was conducted by such accounting firm in accordance with GAAPgenerally accepted auditing standards, nothing has come to the attention of such accounting firm which would cause them to believe has obtained no knowledge that a an Event of Default or Event of an Incipient Default has occurred and is continuingcontinuing as of the date of certification, or if, in the opinion of such accounting firm, a an Event of Default or an Event of Incipient Default has occurred and is continuing, a statement as to the nature thereof, (2) setting forth in reasonable detail the calculations made during such period and as . Such accounting firm shall also prepare a letter to management of the end Borrower in connection with the preparation of such period in determining compliance with audit report which the financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e) AND 5.02(n), AND (3) stating that Borrower shall deliver to the Agent and the Banks may rely thereoneach Bank within five Banking Days of receipt thereof;
(ivd) To the Agent, with sufficient copies for distribution by the Agent to each of the Banks, (i) contemporaneously with each monthly, quarterly and year-end financial report required by the foregoing CLAUSES SUBPARAGRAPHS (iA), (iiB) AND (iii)C) , a certificate of the president and chief executive officera Responsible Officer (A) stating that, the chief financial officer or the vice president and treasurer of Parent stating that he or she has individually reviewed the provisions of this Agreement and that a review of the activities of Parent and the Subsidiaries during such monthly, quarterly and yearly period, as the case may be, has been made by him or her or under his or her supervision, with a view to determining whether Parent has fulfilled all its obligations under this Agreement, and that Parent has observed and performed each undertaking contained in this Agreement and is not in default in the observance or performance of any of the provisions hereof or, if Parent shall be so in default, specifying all such defaults and events of which he may have knowledge;
(v) within ninety (90) days after the close of each fiscal year, a projection and estimate (to the best of Borrowersuch officer's ability at the time made) of the financial position and the results forknowledge after due inquiry, and as of the end of, the immediately succeeding five fiscal years on an annual basis, for Borrower and its Subsidiaries, on a consolidated and, to the extent prepared, consolidating basis, prepared by Borrower, such projections to include: (A) statements of cash flows; (B) statements of income and retained earnings; and (C) balance sheets as of the end of each such annual period, all in reasonable detail certified by Borrower's chief financial officer or vice president and treasurer to present fairly the financial condition and other information reflected therein and to have been prepared in accordance with GAAP, to the extent applicable; such projections and estimates shall not, to the best knowledge of Borrower at the time they are made, be based upon or include any misleading information or fail to take into account material information regarding the matters covered therein;
(vi) promptly after they are sent, made available or filed, copies of all reports, proxy statements and financial statements that Borrower sends or makes available to its stockholders and, concurrently with filing, copies of all registration statements and reports that Borrower files with the Securities and Exchange Commission, including, but not limited to, 10Q, 10K and 8K reports, or with any other Governmental Authority where such registration statements and reports may be filed;
(vii) as soon as possible, and in any event within five (5) days after a Responsible Officer of Borrower has knowledge of (A) the occurrence of a Default or an Event of Default, or (B) any default or event of default as defined in any other evidence of Debt or under any other agreement, indenture or other instrument under which such Debt has been issued, whether or not such Debt is accelerated, but only if such Debt exceeds Five Hundred Thousand Dollars ($500,000) and such Event of Default, Default or such other default or event of default is not waived on or before two (2) Business Days after it occurs, the statement of the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details of such default or event of default, or Default or no Event of Default (and if an event under subclause (B) above, a copy of any notice received from or Incipient Default exists on the issuer or holder date of such Debt) certificate, or if any Event of Default or Incipient Default then exists, setting forth the details thereof and the action which that the Borrower proposes to take with respect thereto;
(viii) simultaneously with the delivery of the financial statements under SUBPARAGRAPH 5.01(c)(ii) above, a certificate from the president and chief executive officer, the chief financial officer is taking or the vice president and treasurer of Borrower (A) demonstrating compliance with the quantitative financial covenants set forth in SUBPARAGRAPHS 5.01(i), 5.01(j), 5.01(k), 5.01(l), 5.02(d), 5.02(e), 5.02(h), 5.02(i), 5.02(j) AND 5.02(n) and (B) setting forth a listing and aging of all trade and other accounts receivable and a listing and aging of all accounts payable;
(ix) as soon as available, the annual written report of auditors pertaining to Borrower's and each of its Subsidiaries' internal controls submitted to Borrower by Borrower's independent public accountants in connection with each annual audit made by such accountants;
(x) within thirty (30) days after the close of each fiscal quarter in each fiscal year, a Borrowing Base Certificate of Borrower, appropriately completed by the chief financial officer or the vice president and treasurer of Borrower;
(xi) without duplication of CLAUSE (vii) above, upon delivery thereof pursuant to the Subordinated Lender Documents or the Note Purchase Documents, a copy of any notice given to any Subordinated Lender, Note Purchaser or the Trustee by Borrower or any notice received by Borrower from any Subordinated Lender, Note Purchaser or the Trustee including, without limitation, a request for payment pursuant to Article 13 of the Indenture;
(xii) prompt written notice of any condition or event which has resulted or might result in (A) a Material Adverse Effect, or (B) a breach of, or noncompliance with, any term, condition or covenant contained herein, or (C) a material breach of, or noncompliance with, any term, condition or covenant of any contract to which Borrower or any Subsidiary is a party or by which it or its property may be bound which contract is material to Borrower and the Subsidiaries as a whole;
(xiii) prompt written notice of any actual or threatened claims, litigation, suits, proceedings or disputes (whether or not purportedly on behalf of Borrower) against or affecting Borrower or any Subsidiary or any of their property which, if adversely determined, would have a Material Adverse Effect (including, without in any way limiting the foregoing, claims, litigation, suits, proceedings or disputes involving monetary amounts in excess of One Million Dollars ($1,000,000) not covered by insurance or self-insurance), or any material labor controversy resulting in or threatening to result in a strike against Borrower or any Subsidiary, or any proposal by any Governmental Authority to acquire any of the material assets or business of Borrower or any Subsidiary, if such strike or acquisition would have a Material Adverse Effect;
(xiv) thirty (30) days' prior written notice of any change in the legal name of Borrower;
(xv) concurrently with filing, copies of IRS Form 5500 filed annually with respect to each Plan of Borrower or any Subsidiary required to file such form, and, promptly after receipt thereof, copies of any notice Borrower or any member of the Controlled Group may receive from the PBGC or the Internal Revenue Service with respect to any Plan; PROVIDED, HOWEVER, that this CLAUSE (xv) shall not apply to notices of general application promulgated by the Department of Labor;
(xvi) as soon as possible, and in any event within thirty (30) days after Borrower or any Subsidiary knows or has reason to know that (A) any Reportable Event has occurred with respect to any Plan, (B) Borrower or any Subsidiary has become obligated to contribute to any Multiemployer Plan; or (C) Borrower or any member of the Controlled Group has incurred withdrawal liability with respect to any Multiemployer Plan, a statement from the president and chief executive officer, the chief financial officer or the vice president and treasurer of Borrower setting forth details as to such event and the action which Borrower or the affected Subsidiary proposes to take with respect thereto, together with a copy of the notice of any Reportable Event as described in (A) above as given to the PBGC if a copy of such notice is available to Borrower or the affected Subsidiary;
(xvii) within twenty (20) days of Agent's or any Bank's request therefor: (A) a current list of the names, addresses and outstanding debts of all Account Debtors, and (B) a current list stating whether, since the date of the namesmost recent financial statements previously delivered pursuant to the foregoing SUBPARAGRAPHS (A), addresses and outstanding amounts due all creditors of Borrower or any Subsidiary;
(xviiiB) within OR (10) days after Agent's or any Bank's request thereforC), copies of federal income tax returns filed by Borrower and its Subsidiaries;
(xix) thirty (30) days prior to any there has been a change in the location of any of Borrower's places of business or of generally accepted accounting principles applied in preparing the establishment of any new, or financial statements then being delivered from those applied in preparing the discontinuance of any existing place of business, written notice of such change, establishment or discontinuance; and
(xx) Such other instruments, agreements, certificates, opinions, statements, documents and information relating to the operations or condition (financial or otherwise) of Borrower or Borrower's Subsidiaries, and compliance by Borrower with the terms of this Agreement and the other Credit Documents, as Agent or any Bank may from time to time reasonably request.most recent
Appears in 1 contract
