Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent: (a) as soon as available and in any event within 30 days after the end of each month (including the last month of each fiscal quarter), a consolidated balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; (b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto; (c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
Appears in 3 contracts
Samples: Forbearance Agreement and Third Amendment to Credit Agreement and Guaranty (Icagen, Inc.), Forbearance Agreement and First Amendment to Credit Agreement and Guaranty (Icagen, Inc.), Forbearance Agreement and Third Amendment to Credit Agreement and Guaranty (Icagen, Inc.)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent:
(a) as soon as available and in any event within 30 days after the end of each month (including the last month of each fiscal quarter), a consolidated balance sheet for Parent the Borrower and its Subsidiaries as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent the Borrower and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent the Borrower files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent the Borrower and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent the Borrower and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent the Borrower is subject to the public reporting requirements of the Exchange Act, Parentthe Borrower’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent the Borrower files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent the Borrower and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent the Borrower is subject to the public reporting requirements of the Exchange Act, Parentthe Borrower’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(d) together with the financial statements required pursuant to Sections 8.01(a) (b) and (c), a compliance certificate signed by a Responsible Officer of the Borrower as of the end of the applicable accounting period substantially in the form of Exhibit E (a “Compliance Certificate”), including details of any issues raised by the Borrower’s auditors that would be reasonably likely to result in a Material Adverse Effect and the creation or other acquisition of any Intellectual Property by any Obligor or any of its Subsidiaries after the date hereof and during such prior fiscal quarter for which such Compliance Certificate is delivered, which is registered or becomes registered or the subject of an application for registration with the U.S. Copyright Office or the U.S. Patent and Trademark Office, as applicable, or with any other equivalent foreign Governmental Authority;
(e) within three (3) Business Days after the end of each fiscal month, a certificate signed by a Responsible Officer of the Borrower as of the end of such fiscal month demonstrating compliance with Section 10.01 hereof;
(f) as soon as available and in any event no later than forty-five (45) days following the end of any fiscal year of the Borrower, copies of an annual budget (or equivalent) for the Borrower and its Subsidiaries, approved by the Borrower’s Board for the next succeeding fiscal year, in form reasonably satisfactory to the Administrative Agent, accompanied by a certificate of the chief financial officer of the Borrower certifying that (i) such budget was prepared by the Borrower in good faith, (ii) the Borrower had at the time of preparation of the budget, and at all times thereafter (including on and as of the date of delivery to the Administrative Agent of such budget) has continued to have, a reasonable basis for all of the assumptions contained in such budget and (iii) such budget was prepared in accordance with, and based upon, such assumptions;
(g) promptly, and in any event within five (5) Business Days after receipt thereof by any Obligor, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of such Obligor (but in any case excluding any routine comments and letters from the SEC relating to such Obligor’s filings with the SEC or information that would violate confidentiality obligations to a Governmental Authority);
(h) information regarding insurance maintained by the Borrower and its Subsidiaries as required under Section 8.05;
(i) within five (5) days after delivery thereof, copies of all statements, reports and notices made available to Borrower’s Board or holders of Borrower’s Equity Interests; provided that any such material may be redacted by the Borrower to (i) exclude information relating to the Lenders (including the Borrower’s strategy regarding the Term Loan), (ii) prevent the disclosure of trade secrets and (iii) protect and preserve attorney-client privilege;
(j) as soon as possible and in any event within five (5) Business Days after the Borrower obtains knowledge of any Claim related to any Obligor that that involves more than $500,000, written notice thereof from a Responsible Officer of the Borrower which notice shall include any statement setting forth details of such Claim; and
(k) such other information respecting the operations, properties, business or condition (financial or otherwise) of the Obligors (including with respect to the Collateral) as the Administrative Agent may from time to time reasonably request;
Appears in 3 contracts
Samples: Forbearance Agreement and Second Amendment to Credit Agreement and Guaranty (Icagen, Inc.), Credit Agreement and Guaranty (Icagen, Inc.), Credit Agreement and Guaranty (Icagen, Inc.)
Financial Statements and Other Information. The REIT Guarantor and the Borrower will furnish deliver to the Administrative AgentAgent (for distribution to each Lender) prompt written notice of the following:
(a) as soon as available not later than ten (10) days following the filing of the REIT Guarantor’s Form 10-K with the Securities and Exchange Commission, and in any event within 30 ninety (90) days after the end of each month (including Fiscal Year of the last month REIT Guarantor, a copy of each fiscal quarter)the annual audited report for such Fiscal Year for the REIT Guarantor and its Subsidiaries, containing a consolidated balance sheet for Parent of the REIT Guarantor and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the REIT Guarantor and its Subsidiaries for such month and Fiscal Year, setting forth in each case in comparative form the portion of figures for the fiscal year through the end of such monthprevious Fiscal Year, all in reasonable detail and reported on by independent certified public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit (other than any “going concern” or similar qualification or exception related to the maturity of the Obligations, the Senior Notes or any other Indebtedness not prohibited hereunder)) to the effect that such financial statements present fairly in all material respects the financial condition and the results of operations of the REIT Guarantor and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) not later than ten (10) days following the filing of the REIT Guarantor’s Form 10-Q with the Securities and Exchange Commission, and in any event within sixty (60) days after the end of each Fiscal Quarter of each of the first three (3) Fiscal Quarters of each Fiscal Year of the REIT Guarantor (or if the REIT Guarantor is not required to file periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, then sixty (60) days after the end of each of the first three (3) Fiscal Quarters in each Fiscal Year), an unaudited consolidated balance sheet of the REIT Guarantor and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income of the REIT Guarantor and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of the REIT Guarantor’s previous Fiscal Year;
(c) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year of the REIT Guarantor and no later than ninety (90) days after the end of the fourth (4th) Fiscal Quarter of each Fiscal Year of the REIT Guarantor, a schedule setting forth, for the four (4) Fiscal Quarter period ending on the last date of such Fiscal Quarter, (A) the aggregate Adjusted NOI for all Real Property Assets that are Unencumbered Properties for each category of facilities set forth in the preceding fiscal year, together definition of Capitalization Rate; (B) the aggregate Net Revenues for all Real Property Assets that are Unencumbered Properties for each category of facilities set forth in the definition of Capitalization Rate; (C) the Adjusted NOI for each Real Property Asset that is an Unencumbered Property; and (D) the Net Revenues with a certificate of a Responsible Officer respect to each Unencumbered Property;
(d) concurrently with the delivery of the Borrower stating financial statements referred to in subsections (a) and (b) of this Section, a Compliance Certificate signed by the principal executive officer or the principal or chief financial officer of the REIT Guarantor (i) certifying that such financial statements fairly present in all material respects the financial condition condition, results of Parent operations, shareholders’ equity and cash flows of REIT Guarantor and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared a consolidated basis in accordance with GAAP, in the case of quarterly financial statements subject only to changes resulting from normal, normal year-end audit adjustments and except for the absence of notes;
footnotes, (bii) certifying as soon as available to whether there exists a Default or Event of Default on the date of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (iii) setting forth in any event within five reasonable detail calculations demonstrating whether the Borrower is in compliance with the financial covenants set forth in Article VI (5) Business Days beginning with the first full Fiscal Quarter following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with Closing Date), (iv) specifying any change in the SEC, a consolidated balance sheet for Parent and its identity of the Subsidiaries as of the end of such quarterFiscal Year or Fiscal Quarter from the Subsidiaries identified to the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (v) stating whether any change in GAAP or the related consolidated application thereof has occurred since the date of the mostly recently delivered audited financial statements of income the REIT Guarantor and cash flows for its Subsidiaries that impacts such quarter and financial statements, and, if any change has occurred, specifying the portion effect of such change on the fiscal year through financial statements accompanying such Compliance Certificate;
(e) [Reserved];
(f) within sixty (60) days after the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal calendar year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent budget for REIT Guarantor and its Subsidiaries for the period ended on succeeding Fiscal Year, containing a projected income statement, balance sheet and statement of cash flows;
(g) [Reserved];
(h) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the REIT Guarantor or the Borrower to its equity holders generally, as the case may be;
(i) promptly following any reasonable request therefor, such date other information with respect to the Real Property Assets as the Administrative Agent or any Lender through the Administrative Agent, may reasonably request and have been prepared as is reasonably available to the REIT Guarantor or any of its Subsidiaries (provided that no such information shall be required to be provided if providing such information would violate confidentiality agreements or result in accordance a loss of attorney-client privilege or a claim of attorney work product with GAAP, subject respect to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, such information so long as Parent the REIT Guarantor notifies the Administrative Agent that such information is subject being withheld and the reason therefor);
(j) promptly following any change in beneficial ownership of the Borrower that would render any statement in the existing Beneficial Ownership Certification materially untrue or inaccurate, an updated Beneficial Ownership Certification for the Borrower; and
(k) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the REIT Guarantor or any of its Subsidiaries as the Administrative Agent may reasonably request (provided that no such information shall be required to be provided if providing such information would violate confidentiality agreements or could result in a loss of attorney-client privilege or a claim of attorney work product with respect to such information so long as the public reporting requirements REIT Guarantor notifies the Administrative Agent that such information is being withheld and the reason therefor). So long as the REIT Guarantor is required to file periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC Borrower shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required have satisfied its obligation to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, deliver the financial statements for referred to in clauses (a), (b) and (h) upon the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K such reports with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Securities and Exchange Commission.
Appears in 3 contracts
Samples: Credit and Guaranty Agreement (CareTrust REIT, Inc.), Credit and Guaranty Agreement (CareTrust REIT, Inc.), Credit and Guaranty Agreement (CareTrust REIT, Inc.)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentLender:
(a) as soon as available and in any event within 30 90 days after the end of each month fiscal year of Borrower, (including i) a copy of the last month of each annual audited report for such fiscal quarter)year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, fiscal year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthyear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding previous fiscal year, together with all in reasonable detail and reported on by Hxxxxxx Axxxx & Co. LLP or other independent certified public accountants of nationally recognized standing chosen by Borrower and acceptable to the Lender (without a certificate “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of a Responsible Officer of such audit), to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such fiscal year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards and (ii) annual unaudited consolidating balance sheets and income statements for the absence of notesBorrower and its Subsidiaries;
(b) as soon as available and in any event within five 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, (5i) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a an unaudited consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal yearquarter with comparative information for the previous year end, and (ii) the related unaudited consolidated statements of income, shareholders’ equity income of the Borrower and cash flows its Subsidiaries for such fiscal quarter and the then elapsed portion of such fiscal year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of Borrower’s previous fiscal year, accompanied and (iii) consolidated statements of cash flow for the then elapsed portion of such fiscal year with comparative information for the corresponding portion of the previous fiscal year, all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a report consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and opinion thereon the absence of RBSM LLP footnotes;
(c) concurrently with the delivery of the financial statements or another firm information referred to in clauses (a) and (b) above, (i) a certificate of independent certified public accountants a Responsible Officer, (1) certifying, to the best of recognized his actual knowledge, as to whether there exists a Default or Event of Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto and (2) stating whether any change in GAAP or the application thereof has occurred since the date of the Borrower’s audited financial statements referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such certificate and (ii) a Covenant Compliance Certificate;
(d) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national standing securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(e) not later than sixty days prior to the beginning of each fiscal year following the Closing Date, an operating budget for the succeeding fiscal year in form and substance reasonably acceptable to the Administrative AgentLender; and
(f) promptly following any request therefor, which report such other information regarding the results of operations, business affairs and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements condition of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with Borrower or any Subsidiary as the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Lender may reasonably request.
Appears in 3 contracts
Samples: Credit Agreement (Patriot Transportation Holding, Inc.), Credit Agreement (Patriot Transportation Holding, Inc.), Credit Agreement (New Patriot Transportation Holding, Inc.)
Financial Statements and Other Information. (a) The Borrower will furnish Company shall deliver to the Administrative AgentInvestors and each other holder of Series A Preferred Shares or Conversion Common Shares:
(ai) as soon as available and but in any event within 30 days after the end of each month monthly accounting period in each fiscal year (including other than the last month of third monthly accounting period in each fiscal quarter), a consolidated balance sheet unaudited statements of income and cash flows of the Company for Parent such monthly period and its Subsidiaries as for the period from the beginning of the fiscal year to the end of such month, and the related consolidated statements of income and cash flows for such month and the portion an unaudited balance sheet of the fiscal year through Company as of the end of such monthmonthly period, all in reasonable detail and setting forth in comparative form each case comparisons to the figures for Company’s annual budget and to the corresponding period in the preceding fiscal year, and all such statements shall be prepared in accordance with GAAP, subject to the absence of footnote disclosures and to normal year-end adjustments, and shall be certified by the Company’s Chief Financial Officer;
(ii) as soon as available but in any event within 45 days after the end of each fiscal quarter in each fiscal year (other than the fourth fiscal quarter of each year), unaudited statements of income and cash flows of the Company for such fiscal quarter and for the period from the beginning of the fiscal year to the end of such fiscal quarter, and an unaudited balance sheet of the Company as of the end of such fiscal quarter, setting forth in each case comparisons to the Company’s annual budget and to the corresponding period in the preceding fiscal year, and all such statements shall be prepared in accordance with GAAP, subject to the absence of footnote disclosures and to normal year-end adjustments, and shall be certified by the Company’s Chief Financial Officer;
(iii) as soon as available but in any event within 90 days after the end of each fiscal year, audited statements of income and cash flows of the Company for such fiscal year, and an audited balance sheet of the Company as of the end of such fiscal year prepared in accordance with GAAP, and accompanied by, with respect to the consolidated portions of such statements, an opinion of an independent accounting firm of recognized regional standing selected by the Board and reasonably acceptable to a majority of the Investors, together with a comparisons to the Company’s annual budget and to the preceding fiscal year;
(iv) accompanying the financial statements referred to in subparagraphs (ii) and (iii), an officer’s certificate stating that there is no event in existence that, with notice or the passage of a Responsible Officer time or both, might become an Event of Noncompliance or, if any such event exists, specifying the nature and period of existence thereof and what actions the Company has taken or has proposed to take with respect thereto;
(v) promptly upon receipt thereof, any additional reports, management letters or other detailed information concerning significant aspects of the Borrower stating Company’s operations or financial affairs given to the Company by its independent accountants (and not otherwise contained in other materials provided hereunder); and
(vi) within 10 days after transmission thereof, copies of all financial statements, proxy statements, reports and any other general written communications that such the Company sends to its shareholders and copies of all press releases and other statements made available generally by the Company to the public concerning material developments in the Company’s business and not otherwise posted on the Company’s external website; provided that any Investor or holder of Series A Preferred Shares or Conversion Common Shares shall be entitled to provide notice to the Company that it elects not to receive copies of the financial statements and other documentation referred to in this Section 5.1(a); and provided further that the Company shall be entitled to satisfy its obligations under this Section 5.1(a) through electronic delivery of the financial statements and other documentation referred to in this Section 5.1(a) or by making such information available through a password-protected website.
(b) Each of the financial statements referred to in subparagraphs (i), (iii) and (iv) shall fairly present in all material respects the financial condition of Parent the Company as of the dates and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAPperiods stated therein, subject in the case of the unaudited financial statements to changes resulting from normal, normal year-end audit adjustments and except for the absence (none of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files would, individually or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal yearaggregate, together with reasonably be expected to have a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Material Adverse Effect).
Appears in 2 contracts
Samples: Series a Preferred Stock Purchase Agreement (Xstream Systems Inc), Series a Preferred Stock Purchase Agreement (Xstream Systems Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative AgentLenders:
(ai) so long as Borrower is not a Publicly Reporting Company, as soon as available and in any event within 30 days after the end of each month (including of the last month first two fiscal months of each fiscal quarter), a the consolidated balance sheet for Parent sheets of Borrower and its Subsidiaries as of the end of each such month, and the related consolidated statements of income income, shareholders’ equity and cash flows of Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries as at such date and the results of operations of Parent Borrower and its Subsidiaries for the period ended on such date and have been prepared substantially in accordance with GAAPGAAP consistently applied, subject to changes resulting from normal, quarterly or year-end audit adjustments and except for the absence of notes;; provided, however, that Borrower shall not be required to deliver any financial statements pursuant to this Section 8.01(a)(i) for so long as Borrower is not delivering such financial statements to Borrower’s Board and/or shareholders; and
(bii) (x) so long as Borrower is not a Publicly Reporting Company, commencing with the fiscal quarter ended June 30, 2016, as soon as available and in any event within 45 days after the end of the first three quarters of each fiscal year (or 60 days, in the case of the fourth fiscal quarter), and (y) after Borrower becomes a Publicly Reporting Company, as soon as available and in any event within five (5) Business Days days following the date on which Parent Borrower files or is required to file a the Quarterly Report on Form 10-Q with the SEC, a the consolidated balance sheet for Parent sheets of Borrower and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income income, shareholders’ equity and cash flows of Borrower and its Subsidiaries for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries as at such date and the results of operations of Parent Borrower and its Subsidiaries for the period ended on such date and have been prepared substantially in accordance with GAAPGAAP consistently applied, subject to changes resulting from normal, normal quarterly or year-end audit adjustments and except for the absence of notes; provided that, ;
(b) (x) so long as Parent Borrower is subject to not a Publicly Reporting Company, as soon as available and in any event within 120 days after the public reporting requirements end of the Exchange Acteach fiscal year, Parent’s filing of and (y) after Borrower becomes a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) Publicly Reporting Company, as soon as available and in any event within five (5) Business Days days following the date on which Parent Borrower files or is required to file its the Annual Report on Form 10-K with the SEC, a the consolidated balance sheet for Parent sheets of Borrower and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries for such fiscal year, prepared substantially in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM KPMG LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agentstanding, which report and opinion shall be prepared in accordance with GAAP generally accepted auditing standards and which shall not be subject to any Impermissible Qualification“going concern” or like qualification or exception or any qualification or exception as to the scope of such audit;
(c) within 30 days after the end of each month, a compliance certificate of a Responsible Officer as of the end of the applicable accounting period (which delivery may, unless a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes) in the form of Exhibit E (a “Compliance Certificate,” which, for purposes of clarification, shall (i) demonstrate Borrower’s compliance with Section 8.18 in respect of such month and (ii) state whether the representations and warranties made by Borrower in Section 7.04 are true on and as of the date thereof) including details of any issues that are material that are raised by auditors;
(d) promptly, and in any event within five (5) Business Days after receipt thereof by an Obligor thereof, copies of each notice or other correspondence received from any securities regulator or exchange to the authority of which Borrower may become subject from time to time concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of such Obligor;
(e) the information regarding insurance maintained by Borrower and its Subsidiaries as required under Section 8.05;
(f) promptly following the Lenders’ written request at any time, proof of Borrower’s compliance with Section 8.18;
(g) within five (5) days of delivery, copies of all statements, reports and notices (including board kits) made available to holders of Borrower’s Equity Interests; provided thatthat (i) any such material may be redacted by Borrower to exclude information relating to the Lenders (including Borrower’s strategy regarding the Loans) and (ii) the Lenders shall not be entitled to receive statements, the financial statements reports and notices relating to topics that (x) are subject to attorney-client privilege or (y) present a conflict of interest for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, Lenders;
(h) so long as Parent Borrower is subject not a Publicly Reporting Company, a financial forecast for Borrower and its Subsidiaries for each fiscal year, including forecasted balance sheets, statements of income and cash flows of Borrower and its Subsidiaries, all of which shall be prepared on a consolidated basis and delivered not later than February 28 of such fiscal year;
(i) promptly following any Lender’s written request, certify that such Obligor is not a passive foreign investment company (“PFIC”) within the meaning of Sections 1291 through 1297 of the Code, or, if such Obligor determines that it is a PFIC, provide such information as would allow the Lender to make a qualified electing fund election with respect to the public reporting requirements stock of the Exchange ActObligor;
(j) after Borrower becomes a Publicly Reporting Company, Parentwithin five (5) days of filing, provide access (via posting and/or links on Borrower’s filing of an Annual Report web site) to all reports on Form 10-K and Form 10-Q filed with the SEC, any Governmental Authority succeeding to any or all of the functions of the SEC or with any national securities exchange; and within five (5) days of filing, provide notice and access (via posting and/or links on Borrower’s web site) to all reports on Form 8-K filed with the SEC, and copies of (or access to, via posting and/or links on Borrower’s web site) all other reports, proxy statements and other materials filed by Borrower with the SEC, any Governmental Authority succeeding to any of the functions of the SEC or with any national securities exchange; and
(k) such other information respecting the operations, properties, business or condition (financial or otherwise) of the Obligors (including with respect to the Collateral) as the Lenders may from time to time reasonably request; provided, that upon and following the occurrence of a Qualified IPO of Borrower or any of its Subsidiaries, Borrower covenants and agrees that neither Borrower, nor any other Person acting on its behalf, will provide any Lender or its Representatives with any information that Borrower believes constitutes material non-public information, unless prior thereto such Lender shall have confirmed to Borrower in writing that it consents to receive such information. Borrower understands and confirms that each Lender shall be deemed to satisfy the requirements of this Section 8.01(c) relying on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;foregoing covenant in effecting transactions in securities of Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Zymeworks Inc.), Credit Agreement (Zymeworks Inc.)
Financial Statements and Other Information. The Holdings or the Borrower will furnish to the Administrative Agent, on behalf of each Lender:
(a) as soon as available and in any event within 30 (i) on or before the date that is 90 days after the end of each month (including the last month of each such fiscal quarter), a consolidated balance sheet for Parent and its Subsidiaries as year of the end Borrower (or, in the case of such month, and the related consolidated financial statements of income and cash flows for such month and the portion of the fiscal year through the end of such monthended December 31, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year2012, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following or before the date on which Parent files or that is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of 120 days after the end of such fiscal year), an audited consolidated balance sheet and the related audited consolidated statements of operations and comprehensive income, shareholdersstockholders’ equity and cash flows of the Borrower as of the end of and for such fiscal year, all in reasonable detail and related notes thereto, setting forth in each case in comparative form the figures for the previous fiscal year, accompanied all reported on by a report and opinion thereon of RBSM LLP Ernst & Young or another any other independent registered public accounting firm of independent certified public accountants of nationally recognized national standing reasonably acceptable to the Administrative Agentstanding, which report and opinion shall be prepared in accordance with GAAP generally accepted auditing standards and which shall not be subject to any Impermissible Qualification; provided that“going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and certified by a Financial Officer, in each case to the effect that such consolidated financial statements present fairly in all material respects the financial condition as of the end of and for such year and results of operations and cash flows of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied and (ii) a management report setting forth (A) statement of income items and Consolidated EBITDA of the Borrower for such fiscal year, showing variance, by dollar amount and percentage, from amounts for the previous fiscal year and budgeted amounts and (B) key operational information and statistics for such fiscal year consistent with internal and industry-wide reporting standards, and (iii) a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower for such fiscal year, as compared to amounts for the previous fiscal year and budgeted amounts;
(b) (i) on or before the date that is 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (or, in the case of financial statements for the fiscal quarter ending March 31, 2013, on or before the date that is 60 days after the end of such fiscal quarter), an unaudited consolidated balance sheet and unaudited consolidated statements of operations and comprehensive income, stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer as presenting fairly in all material respects the financial condition as of the end of and for such fiscal quarter and such portion of the fiscal year and results of operations and cash flows of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes and (ii) a management report setting forth (A) statement of income items and Consolidated EBITDA of the Borrower for such fiscal quarter and for the then elapsed portion of the fiscal year, showing variance, by dollar amount and percentage, from amounts for the comparable periods in the previous fiscal year and budgeted amounts and (B) key operational information and statistics for such fiscal quarter and for the then elapsed portion of the fiscal year consistent with internal and industry-wide reporting standards, and (iii) a narrative report and management’s discussion and analysis of the financial condition and results of operations for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year and budgeted amounts;
(c) simultaneously with the delivery of each set of consolidated financial statements referred to in clauses (a) and (b) above, the related consolidating financial statements reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements;
(d) simultaneously with the delivery of each set of financial statements referred to in clauses (a) and (b) above, a certificate of a Financial Officer (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations (A) with respect to any Test Period in which such Financial Covenant Level is applicable, demonstrating compliance with the Financial Covenant Level and (B) in the case of financial statements referred to in clause (a) above, beginning with the financial statements for the fiscal years year of the Borrower ending 2018 December 31, 2013, of Excess Cash Flow for such fiscal year and 2019 (iii) in the case of financial statements referred to in clause (a) above, setting forth a reasonably detailed calculation of the Available Amount and of the Net Proceeds received during the applicable period by or on behalf of, the Borrower or any of its Restricted Subsidiary in respect of any event described in clause (a) of the definition of the term “Prepayment Event” and the portion of such Net Proceeds that has been invested or are intended to be reinvested in accordance with the proviso in Section 2.11(c);
(e) not later than 75 days after the commencement of each fiscal year of the Borrower (or, in the case of the fiscal year ended December 31, 2013, on or before the date that is 90 days after the end of such fiscal year), a detailed consolidated budget for the Borrower and its Subsidiaries for such fiscal year (including a projected consolidated balance sheet and consolidated statements of projected operations, comprehensive income and cash flows as of the end of and for such fiscal year and setting forth the material assumptions used for purposes of preparing such budget);
(f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and registration statements (other than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered to the Administrative Agent), exhibits to any registration statement and, if applicable, any registration statement on Form S-8) filed by the Borrower or any of its Restricted Subsidiaries with the SEC or with any national securities exchange, or distributed by the Borrower or any of its Restricted Subsidiaries to the holders of its Equity Interests generally, as the case may be; and
(g) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of Holdings, any Intermediate Parent, the Borrower or any of its Restricted Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in writing. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 may be subject satisfied with respect to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements financial information of the Exchange Act, Parent’s filing of an Annual Report on Borrower and its Subsidiaries by furnishing the Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower (or a parent company thereof) filed with the SEC SEC; provided that (i) to the extent such information relates to a parent of the Borrower, such information is accompanied by consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.01(a), such materials are accompanied by a report and opinion of Ernst & Young or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and (iii) shall be certified by a Financial Officer in each case to the effect that such consolidated financial statements present fairly in all material respects the financial condition as of the end of and for such year and results of operations and cash flows of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied subject, in the case of quarterly financial statements, to the absence of footnotes and to normal year-end adjustments. Documents required to be delivered pursuant to Section 5.01(a) or (b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to satisfy the requirements of this Section 8.01(c) have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 9.01 (or otherwise notified pursuant to Section 9.01(d)); or (ii) on which such report documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent upon its reasonable request until a written notice to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Bookrunners will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material nonpublic information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Joint Bookrunners and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available via through a portion of the SEC’s XXXXX system or Platform designated “Public Side Information”; and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a successor system related thereto;portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 2 contracts
Samples: Second Lien Credit Agreement (NEP Group, Inc.), Second Lien Credit Agreement (NEP Group, Inc.)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 30 upon the earlier of the date that is 90 days after the end of each month (including fiscal year of Borrower and the last month of each fiscal quarter)date that is 2 days after such information is filed with the SEC, a copy of the annual audited report for such fiscal year for the Borrower and its Subsidiaries, containing consolidated balance sheet for Parent sheets of the Borrower and its Subsidiaries as of the end of such month, fiscal year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthyear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding previous fiscal year, together with all in reasonable detail and reported on by KPMG L.L.P. or other independent public accountants of nationally recognized standing (without a certificate “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of a Responsible Officer of such audit) to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such fiscal year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five (5) Business Days following upon the earlier of the date on which Parent files or that is required to file a Quarterly Report on Form 10-Q 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower and the date that is 2 days after such information is filed with the SEC, a an CHAR1\935816v6 unaudited consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, quarter and the related unaudited consolidated statements of income, shareholders’ equity income and cash flows of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of such fiscal year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of Borrower’s previous fiscal year, accompanied all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a report consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and opinion thereon the absence of RBSM LLP footnotes;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a certificate of the chief financial officer or treasurer, (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with Article VI, (iii) setting forth whether the Borrower is in compliance with Section 5.11 and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the Borrower’s most recent audited financial statements referred to in Section 4.4 or which have been previously delivered hereunder and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the SEC, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(e) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the Borrower or any Subsidiary as the Administrative Agent or any Lender may reasonably request. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the Issuing Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another firm similar electronic system (the “Platform”) and (b) certain of independent certified the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public accountants of recognized national standing reasonably acceptable information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, which report the Arranger, the Issuing Bank and opinion the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrower or its CHAR1\935816v6 securities for purposes of United States Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Arranger shall be prepared in accordance with GAAP and which shall entitled to treat any Borrower Materials that are not be subject to any Impermissible Qualification; provided that, the financial statements marked “PUBLIC” as being suitable only for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements posting on a portion of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Platform not designated “Public Investor.”
Appears in 2 contracts
Samples: Revolving Credit Agreement (Ruby Tuesday Inc), Revolving Credit Agreement (Ruby Tuesday Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent:
(a) as soon as available and in any event within 30 days after the end of each month (including the last month of each fiscal quarter), a consolidated balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(d) together with the financial statements required pursuant to Sections 8.01(a) (b) and (c), a compliance certificate signed by a Responsible Officer of the Borrower as of the end of the applicable accounting period substantially in the form of Exhibit E (a “Compliance Certificate”), including details of any issues raised by Parent’s auditors that would be reasonably likely to result in a Material Adverse Effect and the creation or other acquisition of any Intellectual Property by any Obligor or any of its Subsidiaries after the date hereof and during such prior fiscal quarter for which such Compliance Certificate is delivered, which is registered or becomes registered or the subject of an application for registration with the U.S. Copyright Office or the U.S. Patent and Trademark Office, as applicable, or with any other equivalent foreign Governmental Authority;
(e) within three (3) Business Days after the end of each fiscal month, a certificate signed by a Responsible Officer of the Borrower as of the end of such fiscal month demonstrating compliance with Section 10.01 hereof;
(f) as soon as available and in any event no later than forty-five (45) days following the end of any fiscal year of Parent, copies of an annual budget (or equivalent) for Parent and its Subsidiaries, approved by Parent’s Board for the next succeeding fiscal year, in form reasonably satisfactory to the Administrative Agent, accompanied by a certificate of the chief financial officer of Parent certifying that (i) such budget was prepared by Parent in good faith, (ii) Parent had at the time of preparation of the budget, and at all times thereafter (including on and as of the date of delivery to the Administrative Agent of such budget) has continued to have, a reasonable basis for all of the assumptions contained in such budget and (iii) such budget was prepared in accordance with, and based upon, such assumptions;
(g) promptly, and in any event within five (5) Business Days after receipt thereof by any Obligor, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of such Obligor (but in any case excluding any routine comments and letters from the SEC relating to such Obligor’s filings with the SEC or information that would violate confidentiality obligations to a Governmental Authority);
(h) information regarding insurance maintained by Parent and its Subsidiaries as required under Section 8.05;
(i) within five (5) days after delivery thereof, copies of all statements, reports and notices made available to Parent’s Board or holders of Parent’s Equity Interests; provided that any such material may be redacted by Parent to (i) exclude information relating to the Lenders (including the Borrower’s strategy regarding the Term Loan), (ii) prevent the disclosure of trade secrets and (iii) protect and preserve attorney-client privilege;
(j) as soon as possible and in any event within five (5) Business Days after the Borrower obtains knowledge of any Claim related to any Obligor that that involves more than $500,000, written notice thereof from a Responsible Officer of the Borrower which notice shall include any statement setting forth details of such Claim;
(k) as soon as possible and in any event within two (2) Business Days after the Borrower or any other Obligor obtains knowledge of and/or receipt by any such party from Sanofi, the Trustee (as defined in the S/I Deed of Trust) and/or any of their respective affiliates, officers, directors, agents or representatives of any notice (whether oral, in writing or otherwise) of any event of default (or any event that with the passage of time or the giving of notice (or both) would constitute an event of default), a default and/or a breach by Borrower and/or Parent under any Sanofi Document, including, but not limited to, any sale or notice of any intended sale of the Mortgaged Premises, any foreclosure or notice of foreclosure relating to the Mortgaged Premises (including under the S/I Deed of Trust), any intended or actual termination of any Sanofi Document, and any claim made against Borrower or Parent (including a claim for indemnification under any Sanofi Document);
(l) concurrently with the delivery to Sanofi thereof, any reports required to be delivered to Sanofi pursuant to the terms of any Sanofi Document; and
(m) such other information respecting the operations, properties, business or condition (financial or otherwise) of the Obligors (including with respect to the Collateral) as the Administrative Agent may from time to time reasonably request;
Appears in 2 contracts
Samples: Credit Agreement (Icagen, Inc.), Credit Agreement (Icagen, Inc.)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 30 95 days after the end of each month (including fiscal year of KPP, a copy of the last month of each annual audited report for such fiscal quarter)year for KPP and its Subsidiaries, containing a consolidated balance sheet for Parent of KPP and its Subsidiaries as of the end of such month, fiscal year and the related consolidated statements of income income, stockholders' equity and cash flows (together with all footnotes thereto) of KPP and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthyear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding previous fiscal year, together with all in reasonable detail and reported on by KPMG LLP or other independent public accountants of nationally recognized standing (without a certificate "going concern" or like qualification, exception or explanation and without any qualification or exception as to scope of a Responsible Officer of such audit) to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent KPP and its Subsidiaries for the period ended such fiscal year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five (5) Business Days following 50 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three fiscal quarters of each fiscal year of KPP, a an unaudited consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent KPP and its Subsidiaries as of the end of such fiscal year, quarter and the related unaudited consolidated statements of income, shareholders’ equity income and cash flows of KPP and its Subsidiaries for such fiscal quarter and the then elapsed portion of such fiscal year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of KPP's previous fiscal year, accompanied all certified by a report Responsible Officer of KPP as presenting fairly in all material respects the financial condition and opinion thereon results of RBSM LLP or another firm operations of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report KPP and opinion shall be prepared its Subsidiaries on a consolidated basis in accordance with GAAP and which shall not be GAAP, subject to any Impermissible Qualification; provided that, normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements for the fiscal years ending 2018 referred to in subsections (a) and 2019 may be subject to an Impermissible Qualification; provided further that(b) above, so long as Parent is subject to the public reporting requirements a certificate of a Responsible Officer of the Exchange ActBorrower, Parent’s filing (i) certifying as to whether a Default or Event of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) Default has occurred and is continuing on the date of such certificate, and if a Default or an Event of Default then has occurred and is continuing, specifying the details thereof and the action that the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with Article VI and (iii) stating whether any change in GAAP or the application thereof affecting the calculations described in clause (ii) above has occurred since the date of the audited financial statements of KPP referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (a) above, a certificate of the accounting firm that reported on such financial statements stating whether it obtained any knowledge during the course of its examination of such financial statements of any Default or Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by KPP or the Borrower to its security holders generally; and
(f) promptly following any request therefor, such report is first available via other information regarding the SEC’s XXXXX system results of operations, business affairs and financial condition of KPP, the Borrower or a successor system related thereto;of their respective Subsidiaries as the Administrative Agent or any Lender may reasonably request.
Appears in 2 contracts
Samples: Bridge Loan Agreement (Kaneb Services LLC), Bridge Loan Agreement (Kaneb Services LLC)
Financial Statements and Other Information. The Borrower Holdings will furnish to the Administrative AgentIssuing Bank:
(a) as soon as available and in any event within 30 50 days after the end of each month (including of the last month first three fiscal quarters of each fiscal quarter)year of Holdings, a the consolidated balance sheet for Parent of Holdings and its Subsidiaries (and, for so long as required to be delivered under the Existing Financing Agreement, the consolidated balance sheet of Holdings and its domestic Subsidiaries (other than OSH)) as of the end of such month, quarter and the related consolidated statements of income and cash flows of Holdings and its Subsidiaries (and, for such month so long as required to be delivered under the Existing Financing Agreement, the consolidated statements of income and cash flows of Holdings and its domestic Subsidiaries (other than OSH)) for the portion period commencing at the end of the previous fiscal year through and ending with the end of such monthquarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal duly certified (subject to year, together with a certificate of a Responsible -end audit adjustments) by an Authorized Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries Holdings as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have having been prepared in accordance with GAAP, subject to changes resulting from normalprovided Holdings may satisfy the requirements of this clause (a) by delivery via electronic mail of its quarterly report on form 10-Q (or any successor form), year-end audit adjustments and except for as filed with the absence of notesSEC;
(b) as soon as available and in any event within five 95 days after the end of each fiscal year of Holdings, (5i) Business Days following a copy of the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with annual audit report for such year for Holdings and its Subsidiaries, containing the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent Holdings and its Subsidiaries as of the end of such fiscal year, year and the related consolidated statements of income, shareholders’ equity income and cash flows of Holdings and its Subsidiaries for such fiscal year, all in reasonable detail and setting forth in comparative form each case reported on without a “going concern” or like qualification or exception, or qualification arising out of the figures for scope of the previous fiscal yearaudit, accompanied by a report and opinion thereon its Board-appointed auditor of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable and (ii) for so long as required to be delivered under the Administrative AgentExisting Financing Agreement, which report a consolidated balance sheet of Holdings and opinion shall be its domestic Subsidiaries (other than OSH) as of the end of such fiscal year and consolidated statements of income and cash flows of Holdings and its domestic Subsidiaries (other than OSH) for such fiscal year duly certified by an Authorized Officer of Holdings as having been prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; GAAP, provided that, the financial statements for the fiscal years ending 2018 and 2019 Holdings may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this clause (b) by delivery via electronic mail of its annual report on form 10-K (or any successor form), as filed with the SEC;
(c) at least ten (10) days prior written notice of any change (i) in any Account Party’s or any Subsidiary Applicant’s corporate name, (ii) in any Account Party’s or any Subsidiary Applicant’s corporate structure or jurisdiction of incorporation or formation, or (iii) in any Account Party’s or any Subsidiary Applicant’s Federal Taxpayer Identification Number or organizational identification number assigned to it by its state of organization;
(d) promptly and in any event within five days after any Authorized Officer of Holdings or any Account Party has knowledge of the occurrence and continuance of a Default or Event of Default, a statement of an Authorized Officer of Holdings or such Account Party setting forth details of such Default or Event of Default and the action that Holdings or such Account Party has taken and proposes to take with respect thereto;
(i) contemporaneously with the delivery of the reports required pursuant to clauses (a) and (b) of this Section, a report (which may take the form of a footnote to Holdings’ quarterly and annual reports filed with the SEC and delivered to the Issuing Bank) setting forth the estimated Unfunded Pension Liability of Holdings and its Subsidiaries, and (ii) promptly after receipt thereof by the Account Parties, a copy of the funded status report received from the Account Parties’ actuaries with respect to amounts to be funded under the Account Parties’ Pension Plan;
(f) [Intentionally Omitted];
(g) promptly, notice of any event that the Account Parties reasonably believe has resulted in a Material Adverse Effect; and
(h) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Account Parties and the Subsidiary Applicants, or compliance with the terms of any Credit Document, as the Issuing Bank may reasonably request. Reports and financial statements required to be delivered by the Account Parties pursuant to clauses (a), (b), (e), (g), and (h) of this Section 8.01(c) shall be deemed to have been delivered on the date on which Holdings or the Account Parties cause such report reports, or reports containing such financial statements, to be posted on the Internet at xxx.xxx.xxx or at such other website identified by the Account Parties in a notice to the Issuing Bank and that is first available via accessible by the SEC’s XXXXX system or Issuing Bank without charge. In addition, the Account Parties obligations to deliver any reports and financing statements required to be delivered pursuant to any clause of this Section shall be deemed to have been satisfied on the date on which the Issuing Bank, in its capacity as a successor system related thereto;“Lender” under the Existing Financing Agreement, receives copies of such reports and statements pursuant to the Existing Financing Agreement.
Appears in 2 contracts
Samples: Uncommitted Letter of Credit Agreement, Uncommitted Letter of Credit Agreement (Sears Holdings Corp)
Financial Statements and Other Information. The Borrower will Promptly furnish to Lender copies of (i) such information regarding its business and affairs and financial condition as Lender may reasonably request, and (ii) without request, the Administrative Agentfollowing:
(a) as soon as available and available, but in any event within 30 not later than 90 days after the end of each month (including fiscal year of the last month of each fiscal quarter)Borrower, a copy of the audited consolidated balance sheet for Parent of the Borrower and its consolidated Subsidiaries as of at the end of such month, year and the related audited consolidated statements of income and changes in cash flows for such month and the portion of the fiscal year through the end of such monthyear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding fiscal previous year, together with reported on without a certificate of a Responsible Officer "going concern" or like qualification or exception, or qualification arising out of the Borrower stating that such financial statements fairly present in all material respects scope of the financial condition audit, by Xxxx + Associates LLP or other independent certified public accounting firm of Parent and its Subsidiaries as at such date and recognized standing acceptable to the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notesLender;
(b) as soon as available and available, but in any event within five (5) Business Days following not later than 45 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each month, the SEC, a unaudited consolidated balance sheet for Parent of the Borrower and its consolidated Subsidiaries as of at the end of such quarter, month and the related unaudited consolidated statements of income and changes in cash flows of the Borrower and its consolidated Subsidiaries for such quarter month and for the portion period from the beginning of the most recent fiscal year through to the end of such quartermonth, all in reasonable detail and setting forth in comparative form certified by the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer chief financial officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, (subject to changes resulting from normal, normal year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretoadjustments);
(c) as soon as available and available, but in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of not later than 45 days after the end of such fiscal yeareach month, calculations of the Consolidated Current Ratio, Consolidated Tangible Net Worth, Debt Service Ratio and Consolidated Debt to Consolidated Tangible Net Worth Ratio of the Borrower for the periods required as set forth in Section 6.1 of this Agreement;
(d) as soon as available, but in any event not later than 45 days after the end of each month, a list of all accounts payable and accounts receivable of the Borrower and its consolidated Subsidiaries, and an aging of such accounts on the related consolidated basis of 30-60-90 and over 90 days from date of invoice;
(e) promptly upon their becoming available, but in any event not later than five days after the same are sent, copies of all financial statements, reports, notices and proxy statements sent or made available generally by the Borrower to its shareholders, of incomeall regular and periodic reports and all private placement memorandums and all registration statements and prospectuses, shareholders’ equity if any, filed by the Borrower with any securities exchange or with the Securities and cash flows for such fiscal year, Exchange Commission; and all in reasonable detail press releases and setting forth in comparative form other statements made available generally by the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject Borrower to the public reporting requirements concerning material developments in the business of the Exchange ActBorrower;
(f) immediately after becoming aware of the existence of, Parent’s filing or any material change in the status of, any Environmental Complaint or any litigation which could have a Material Adverse Effect if determined adversely against the Borrower or any of its Subsidiaries, a written communication to Lender of such matter;
(g) immediately upon becoming aware of an Annual Event of Default or the existence of any condition or event which constitutes, or with notice or lapse of time, or both, would constitute an Event of Default, a verbal notification to Lender specifying the nature and period of existence thereof and what action the Borrower is taking or proposes to take with respect thereto and, immediately thereafter, a written confirmation to Lender of such matters;
(h) immediately after becoming aware that any person has given notice or taken any action with respect to a claimed default under any indenture, mortgage, deed of trust, promissory note, loan agreement, note agreement, joint venture agreement or any other Material Agreement or other undertaking to which the Borrower or any Subsidiary is a party, a verbal notification to Lender specifying the notice given or action taken by such person and the nature of the claimed default and what action the Borrower is taking or proposes to take with respect thereto and, immediately thereafter, a written communication to Lender of such matters;
(i) within 45 days after the end of each month, the Borrowing Base Report on Form 10-K with required by Section 2.3(b)(i) of this Agreement;
(j) within 45 days after the SEC end of each month, a compliance certificate in the form attached hereto as Exhibit K, which shall be deemed signed by the chief executive officer or principal financial officer of the Borrower;
(k) as soon as available, but in any event not later than 45 days after the end of each calendar quarter, a report, in detail reasonably satisfactory to satisfy Lender, (i) setting forth, by owner, the requirements unit number, serial number or other identifying number of this Section 8.01(ceach gas compressor owned by the Borrower and its Subsidiaries, (ii) on stating whether or not each compressor identified in the report has been leased or rented to any person and, if so, a brief description of the lease, including, without limitation, the date on which of the lease and the name of the lessee, (iii) describing the specific location of each gas compressor, (iv) attaching copies of any compressor lease or rental agreement entered into during the prior month and (v) including such report is first available via the SEC’s XXXXX system or a successor system related thereto;other information as Lender shall reasonably require.
Appears in 2 contracts
Samples: Quarterly Report, Loan Agreement (Natural Gas Services Group Inc)
Financial Statements and Other Information. The Holdings or the Borrower will furnish to the Administrative Agent, on behalf of each Lender:
(a) as soon as available and in any event within 30 (i) on or before the date that is 90 days after the end of each month (including the last month of each such fiscal quarter), a consolidated balance sheet for Parent and its Subsidiaries as year of the end Borrower (or, in the case of such month, and the related consolidated financial statements of income and cash flows for such month and the portion of the fiscal year through the end of such monthended December 31, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year2012, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following or before the date on which Parent files or that is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of 120 days after the end of such fiscal year), an audited consolidated balance sheet and the related audited consolidated statements of operations and comprehensive income, shareholdersstockholders’ equity and cash flows of the Borrower as of the end of and for such fiscal year, all in reasonable detail and related notes thereto, setting forth in each case in comparative form the figures for the previous fiscal year, accompanied all reported on by a report and opinion thereon of RBSM LLP Ernst & Young or another any other independent registered public accounting firm of independent certified public accountants of nationally recognized national standing reasonably acceptable to the Administrative Agentstanding, which report and opinion shall be prepared in accordance with GAAP generally accepted auditing standards and which shall not be subject to any Impermissible Qualification; provided that“going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and certified by a Financial Officer, in each case to the effect that such consolidated financial statements present fairly in all material respects the financial condition as of the end of and for such year and results of operations and cash flows of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied and (ii) a management report setting forth (A) statement of income items and Consolidated EBITDA of the Borrower for such fiscal year, showing variance, by dollar amount and percentage, from amounts for the previous fiscal year and budgeted amounts and (B) key operational information and statistics for such fiscal year consistent with internal and industry-wide reporting standards, and (iii) a narrative report and management’s discussion and analysis of the financial condition and results of operations of the Borrower for such fiscal year, as compared to amounts for the previous fiscal year and budgeted amounts;
(i) on or before the date that is 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (or, in the case of financial statements for the fiscal quarter ending March 31, 2013, on or before the date that is 60 days after the end of such fiscal quarter), an unaudited consolidated balance sheet and unaudited consolidated statements of operations and comprehensive income, stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer as presenting fairly in all material respects the financial condition as of the end of and for such fiscal quarter and such portion of the fiscal year and results of operations and cash flows of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes and (ii) a management report setting forth (A) statement of income items and Consolidated EBITDA of the Borrower for such fiscal quarter and for the then elapsed portion of the fiscal year, showing variance, by dollar amount and percentage, from amounts for the comparable periods in the previous fiscal year and budgeted amounts and (B) key operational information and statistics for such fiscal quarter and for the then elapsed portion of the fiscal year consistent with internal and industry-wide reporting standards, and (iii) a narrative report and management’s discussion and analysis, of the financial condition and results of operations for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year and budgeted amounts;
(c) simultaneously with the delivery of each set of consolidated financial statements referred to in clauses (a) and (b) above, the related consolidating financial statements reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements;
(d) simultaneously with the delivery of each set of financial statements referred to in clauses (a) and (b) above, a certificate of a Financial Officer (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations (A) with respect to any Test Period in which such Financial Performance Covenant is applicable, demonstrating compliance with the Financial Performance Covenant and (B) in the case of financial statements referred to in clause (a) above, beginning with the financial statements for the fiscal years year of the Borrower ending 2018 December 31, 2013, of Excess Cash Flow for such fiscal year and 2019 (iii) in the case of financial statements referred to in clause (a) above, setting forth a reasonably detailed calculation of the Available Amount and of the Net Proceeds received during the applicable period by or on behalf of, the Borrower or any of its Restricted Subsidiary in respect of any event described in clause (a) of the definition of the term “Prepayment Event” and the portion of such Net Proceeds that has been invested or are intended to be reinvested in accordance with the proviso in Section 2.11(c);
(e) not later than 75 days after the commencement of each fiscal year of the Borrower (or, in the case of the fiscal year ended December 31, 2013, on or before the date that is 90 days after the end of such fiscal year), a detailed consolidated budget for the Borrower and its Subsidiaries for such fiscal year (including a projected consolidated balance sheet and consolidated statements of projected operations, comprehensive income and cash flows as of the end of and for such fiscal year and setting forth the material assumptions used for purposes of preparing such budget);
(f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and registration statements (other than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered to the Administrative Agent), exhibits to any registration statement and, if applicable, any registration statement on Form S-8) filed by the Borrower or any of its Restricted Subsidiaries with the SEC or with any national securities exchange, or distributed by the Borrower or any of its Restricted Subsidiaries to the holders of its Equity Interests generally, as the case may be; and
(g) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of Holdings, any Intermediate Parent, the Borrower or any of its Restricted Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably request in writing. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 may be subject satisfied with respect to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements financial information of the Exchange Act, Parent’s filing of an Annual Report on Borrower and its Subsidiaries by furnishing the Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower (or a parent company thereof) filed with the SEC SEC; provided that (i) to the extent such information relates to a parent of the Borrower, such information is accompanied by consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.01(a), such materials are accompanied by a report and opinion of Ernst & Young or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit and (iii) shall be certified by a Financial Officer in each case to the effect that such consolidated financial statements present fairly in all material respects the financial condition as of the end of and for such year and results of operations and cash flows of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied subject, in the case of quarterly financial statements, to the absence of footnotes and to normal year-end adjustments. Documents required to be delivered pursuant to Section 5.01(a) or (b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to satisfy the requirements of this Section 8.01(c) have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 9.01 (or otherwise notified pursuant to Section 9.01(d)); or (ii) on which such report documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent upon its reasonable request until a written notice to cease delivering paper copies is given by the Administrative Agent and (ii) the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent, the Joint Bookrunners and/or the Amendment No. 3 Joint Bookrunners will make available to the Lenders and the Issuing Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material nonpublic information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Joint Bookrunners, the Amendment No. 3 Joint Bookrunners, the Issuing Bank and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available via through a portion of the SEC’s XXXXX system or Platform designated “Public Side Information”; and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a successor system related thereto;portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 2 contracts
Samples: First Lien Credit Agreement (NEP Group, Inc.), First Lien Credit Agreement (NEP Group, Inc.)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 30 90 days after the end of each month (including the last month fiscal year of each fiscal quarter)Borrower, a copy of the annual audited report for such fiscal year for the Borrower and its Subsidiaries, containing (i) a consolidated and consolidating balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated and consolidating statements of income, of changes in shareholders’ equity and of cash flows (together with all footnotes thereto), and (ii) a condensed balance sheet of the Borrower only and the related condensed statements of income and of cash flows for such month and the portion of the fiscal year through the end of such monthflows, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding previous fiscal year, together with all in reasonable detail and reported on by PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized standing (without a certificate “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of a Responsible Officer of such audit) to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations and cash flows on a consolidated and consolidating basis of Parent and its Subsidiaries the Borrower for the period ended on such date and have been prepared fiscal year in accordance with GAAPGAAP and that the examination by such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards; provided, subject that the requirements set forth in this clause (a), other than the certification of the Borrower’s certified public accountants set forth in clause (ii) above, may be fulfilled by providing to changes resulting from normal, yearthe Administrative Agent and the Lenders the report of the Borrower to the SEC on Form 10-end audit adjustments and except K for the absence of notesapplicable fiscal year;
(b) as soon as available and in any event within five (5) Business Days following 45 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three fiscal quarters of each fiscal year of the Borrower, a consolidated an unaudited balance sheet for Parent of the Borrower and its Subsidiaries on a consolidated basis as of the end of such quarter, fiscal quarter and the related consolidated unaudited statements of income and cash flows of the Borrower and its Subsidiaries on a consolidated basis, each for such fiscal quarter and the then elapsed portion of the such fiscal year through the end of such quarteryear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in quarter and the preceding corresponding portion of Borrower’s previous fiscal year, together with a certificate of a Responsible Officer all certified by the chief financial officer or treasurer of the Borrower stating that such financial statements as presenting fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, normal year-end audit adjustments and except for the absence of notesfootnotes; provided thatprovided, so long as Parent is subject that the requirements set forth in this clause (b) with respect to the public reporting requirements financial information of the Exchange Act, Parent’s filing Borrower and its Subsidiaries on a consolidated and consolidating basis may be fulfilled by providing to the Administrative Agent and the Lenders the report of a Quarterly Report the Borrower to the SEC on Form 10-Q with for the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretoapplicable fiscal quarter;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a Compliance Certificate, (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, and (ii) setting forth in reasonable detail calculations demonstrating compliance with Article VI;
(d) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, duly executed copies of the Borrower’s then-current FR Y-9C Report and FR Y-9LP Report and a duly executed copy of the then-current Call Report for each Financial Institution Subsidiary;
(e) as soon as available and in any event within five (5) Business Days following 60 days after the date on which Parent files or is required to file its Annual Report on Form 10-K with first day of each fiscal year of the SECBorrower, a budget prepared on a consolidated and quarterly basis in reasonable detail (including budgeted income statements, statements of cash flow and balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, sheets and the related consolidated statements of income, shareholders’ equity and cash flows principal assumptions upon which such budgets are based) prepared by the Borrower for such fiscal year, all year in reasonable detail form and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing content reasonably acceptable to the Administrative Agent;
(f) promptly after the same become publicly available, which report copies of all periodic and opinion shall be prepared in accordance other reports, proxy statements and other materials filed with GAAP the Securities and which shall not be subject Exchange Commission, or any Governmental Authority succeeding to any Impermissible Qualification; provided thator all functions of said Commission, or with any national securities exchange, or distributed by the financial statements for Borrower to its shareholders generally, as the fiscal years ending 2018 and 2019 case may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject (to the public reporting requirements extent not otherwise required to be delivered to the Administrative Agent or the Lenders hereunder);
(g) promptly after receiving knowledge thereof, written notice of all material charges, material assessments, actions, suits and proceedings (as well as notice of the Exchange Actoutcome of any such charges, Parent’s filing of an Annual Report on Form 10-K assessments, orders, actions, suits and proceedings) that are proposed or initiated by, or brought before, any court or Governmental Authority, in connection with the SEC Borrower or any of the Financial Institution Subsidiaries, other than ordinary course of business litigation or proceedings which, if adversely decided, could not reasonably be expected to have a Material Adverse Effect; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the Borrower or any Subsidiary, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.1(a) or (b) or Section 5.1(f) (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to satisfy the requirements of this Section 8.01(c) have been delivered on the date (i) on which the Borrower posts such documents or provides a link thereto on the Borrower’s website on the internet at the website address set forth in Section 10.1 or (ii) on which such report documents are posted on the Borrower’s behalf on an internet or intranet website, if any, to which the Administrative Agent and each Lender have access; provided, that (A) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender if so requested until a written notice is first available via received by the SEC’s XXXXX system Borrower from the Administrative Agent or a successor system related thereto;such Lender to cease delivering paper copies and (B) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents and provide to the Administrative Agent and each Lender by electronic mail electronic versions (i.e. soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of all Compliance Certificates.
Appears in 2 contracts
Samples: Term Loan Agreement (Hancock Holding Co), Term Loan Agreement (Hancock Holding Co)
Financial Statements and Other Information. The Borrower will shall furnish or cause to the Administrative Agentbe furnished to each Credit Party:
(a) as soon as available and available, but in any event within 30 90 days after the end of each month (including fiscal year of the last month of each fiscal quarter)Borrower, a consolidated balance sheet for Parent copy of its Statement of Assets and its Subsidiaries Liabilities as of at the end of such monthfiscal year, and together with the related consolidated statements Schedule of income Investments and cash flows for such month Statements of Operations and the portion Changes in Net Assets as of the fiscal year and through the end of such monthfiscal year; each such Statement of Assets and Liabilities and the related Schedule of Investments and Statements of Operations and Changes in Net Assets shall be certified without qualification by independent public accountants, all which certification shall (i) state that the examination by such independent public accountants in reasonable detail connection with such financial statements has been made in accordance with those auditing standards required by the ICA and setting forth in comparative form prescribed by the figures SEC for the corresponding period Borrower or, to the extent not so required or prescribed, generally accepted auditing standards in the preceding fiscal year, together with a certificate United States and (ii) include the opinion of a Responsible Officer of the Borrower stating such independent public accountants that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance conformity with GAAPApplicable Accounting Principles, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notesas otherwise specified in such opinion;
(b) as soon as available and available, but in any event within five (5) Business Days following 90 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of the SECfirst semiannual accounting period in each fiscal year of the Borrower, a consolidated balance sheet for Parent copy of the Borrower’s Statement of Assets and its Subsidiaries Liabilities as of at the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal yearsemiannual period, together with a certificate the related Schedule of a Responsible Officer Investments and Statements of the Borrower stating that Operations and Changes in Net Assets for such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretoperiod;
(c) as soon as available and available, but in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of not later than 45 days after the end of such each quarterly accounting period in each fiscal yearyear of the Borrower, and the related consolidated statements Borrower shall deliver to the Administrative Agent a duly completed certificate of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably duly authorized representative (who shall be acceptable to the Administrative Agent) of the Borrower, which report and opinion substantially in the form of Exhibit G hereto;
(d) as soon as available, but in any event not later than two (2) Business Days after the last Business Day of each week, the Borrower shall deliver to the Administrative Agent a duly completed certificate of a duly authorized representative (who shall be prepared acceptable to the Administrative Agent) of the Borrower, substantially in accordance with GAAP and which shall not be subject the form of Exhibit G hereto;
(e) [Reserved]
(f) prompt written notice of any contest referred to any Impermissible Qualification; provided thatin Sections 6.5 or 6.6;
(g) promptly after the execution thereof, copies of all material amendments or other material changes to the Fundamental Policies, the financial statements for Organization Documents, all investment advisory or investment management contracts, and any new investment advisory or investment management contracts entered into after the fiscal years ending 2018 and 2019 Effective Date;
(h) prompt written notice in the event that the Borrower decides to seek the approval of its board of directors and, if necessary, its shareholders to effect a change in any of its Fundamental Policies; and
(i) promptly after request therefor, such other information as any Credit Party may be subject reasonably request from time to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;time.
Appears in 2 contracts
Samples: Credit Agreement (Aberdeen Asia-Pacific Income Fund Inc), Credit Agreement (Aberdeen Asia-Pacific Income Fund Inc)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentLender:
(a) as soon as available and in any event within 30 90 days after the end of each month (including the last month fiscal year of each fiscal quarter)Borrower, a copy of the annual audited report for such fiscal year for the Borrower and its Subsidiaries, containing (i) a consolidated and consolidating balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated and consolidating statements of income, of changes in shareholders’ equity and of cash flows (together with all footnotes thereto), and (ii) a condensed balance sheet of the Borrower only and the related condensed statements of income and of cash flows for such month and the portion of the fiscal year through the end of such monthflows, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding previous fiscal year, together with all in reasonable detail and reported on by PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized standing (without a certificate “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of a Responsible Officer of such audit) to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations and cash flows on a consolidated and consolidating basis of Parent and its Subsidiaries the Borrower for the period ended on such date and have been prepared fiscal year in accordance with GAAPGAAP and that the examination by such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards; provided, subject that the requirements set forth in this clause (a), other than the certification of the Borrower’s certified public accountants set forth in clause (ii) above, may be fulfilled by providing to changes resulting from normal, yearthe Lender the report of the Borrower to the SEC on Form 10-end audit adjustments and except K for the absence of notesapplicable fiscal year;
(b) as soon as available and in any event within five (5) Business Days following 45 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three fiscal quarters of each fiscal year of the Borrower, a consolidated an unaudited balance sheet for Parent of the Borrower and its Subsidiaries on a consolidated basis as of the end of such quarter, fiscal quarter and the related consolidated unaudited statements of income income and cash flows of the Borrower and its Subsidiaries on a consolidated basis, each for such fiscal quarter and the then elapsed portion of the such fiscal year through the end of such quarteryear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in quarter and the preceding corresponding portion of Borrower’s previous fiscal year, together with a certificate of a Responsible Officer all certified by the chief financial officer or treasurer of the Borrower stating that such financial statements as presenting fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, normal year-end audit adjustments and except for the absence of notesfootnotes; provided thatprovided, so long as Parent is subject that the requirements set forth in this clause (b) with respect to the public reporting requirements financial information of the Exchange Act, Parent’s filing Borrower and its Subsidiaries on a consolidated and consolidating basis may be fulfilled by providing to the Lender the report of a Quarterly Report the Borrower to the SEC on Form 10-Q with for the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretoapplicable fiscal quarter;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a Compliance Certificate, (i) certifying as soon to whether there exists a Default or Event of Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, and (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI;
(d) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, duly executed copies of the Borrower’s then-current FR Y-9C Report and FR Y-9LP Report and a duly executed copy of the then-current Call Report for each Financial Institution Subsidiary and each such report so filed by the Borrower or the Financial Institution Subsidiaries with any Governmental Authority shall be true and correct and is in accordance with the respective books of account and records of the Borrower and the Financial Institution Subsidiaries, and will be prepared in accordance with applicable banking regulations, rules and guidelines on a basis consistent with prior periods, and fairly and accurately presents, in all material respects, the financial condition of the Borrower and the Financial Institution Subsidiaries and their respective assets and liabilities and the results of their respective operations as available of such date;
(e) [Reserved];
(f) promptly after the same become publicly available, copies of all periodic and other reports, financial statements, registration statements, proxy statements and other materials, together with any amendments or exhibits relating to any of the foregoing, filed with the SEC, or any Governmental Authority succeeding to any or all functions of the SEC, or with any national securities exchange, or distributed by the Borrower to its public security holders generally, as the case may be (to the extent not otherwise required to be delivered to the Lender hereunder);
(g) promptly after receiving knowledge thereof, written notice of all material charges, material assessments, actions, suits and proceedings (as well as notice of the outcome of any such charges, assessments, orders, actions, suits and proceedings) that are proposed or initiated by, or brought before, any court or Governmental Authority, in connection with the Borrower or any of the Financial Institution Subsidiaries, other than ordinary course of business litigation or proceedings which, if adversely decided, could not reasonably be expected to have a Material Adverse Effect;
(h) promptly, and in any event within five (5) Business Days after the execution or entry thereof, the execution or entry by the Borrower or any Financial Institution Subsidiary of any Regulatory Agreement, together with a copy thereof if such disclosure is permitted by applicable law; and
(i) promptly following any request therefor, such other information regarding the date on which Parent files results of operations, business affairs and financial condition of the Borrower or is any Subsidiary, as the Lender may reasonably request. Documents required to file its Annual Report on Form 10-K be delivered pursuant to Section 5.1(a), (b), (d) or (f) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents or provides a consolidated balance sheet for Parent link thereto on the Borrower’s website on the internet at the website address set forth in Section 9.1 or (ii) on which such documents are posted on the Borrower’s behalf on an internet or intranet website, if any, to which the Lender have access; provided, that (A) the Borrower shall deliver paper copies of such documents to the Lender if so requested until a written notice is received by the Borrower from the Lender to cease delivering paper copies and (B) the Borrower shall notify (which may be by telefacsimile or email) the Lender of the posting of any such documents and provide to the Lender by electronic mail electronic versions (i.e. soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper or .pdf copies of all Compliance Certificates. The Borrower and each of its Subsidiaries maintain effective internal control over financial reporting (as defined under Rule 13-a15 and 15d-15 of the end 1934 Act Regulations) and a system of such fiscal year, internal accounting controls sufficient to provide reasonable assurances that: (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; (D) the related consolidated statements of income, shareholders’ equity recorded accountability for assets is compared with the existing assets at reasonable intervals and cash flows for such fiscal year, all appropriate action is taken with respect to any differences; and (E) any interactive data in reasonable detail eXtensible Business Reporting Language included in the Borrower’s SEC filings fairly presents the required information and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be is prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX rules and guidelines applicable thereto. The Borrower and each of its Subsidiaries shall maintain an effective system of disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 of the 1934 Act Regulations) that are designed to ensure that the information required to be disclosed by the Borrower in the reports that it files or a successor system related thereto;submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms, and is accumulated and communicated to the Borrower’s management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
Appears in 2 contracts
Samples: Credit Agreement (United Community Banks Inc), Credit Agreement (United Community Banks Inc)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative Agent:
(a) as soon as available and in any event within 30 seventy-five (75) days after the end of each month (including fiscal year of Borrower, a copy of the last month of each annual audited report for such fiscal quarter)year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, fiscal year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthyear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding previous fiscal year, together with all in reasonable detail and reported on by independent public accountants of nationally recognized standing (without a certificate of a Responsible Officer of “going concern” or like qualification or exception, and without any qualification or exception not acceptable to Lenders in their sole discretion) to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such fiscal year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five forty (540) Business Days following days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three (3) fiscal quarters of each fiscal year of the Borrower, a an unaudited consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such quarter, fiscal quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of the such fiscal year through the end of such quarteryear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in quarter and the preceding corresponding portion of Borrower’s previous fiscal year, together with a certificate of a Responsible Officer all certified by the chief financial officer or treasurer of the Borrower stating that such financial statements as presenting fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, normal year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretofootnotes;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, (i) a certificate of a Responsible Officer, (A) certifying as to whether there exists a Default or Event of Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto and (B) stating whether any change in GAAP or the application thereof has occurred since the date of the Borrower’s audited financial statements referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such certificate, and (ii) a certificate of a Responsible Officer in the form of Exhibit 5.1(c) (the “Compliance Certificate”) setting forth in reasonable detail calculations demonstrating compliance with Article VI;
(d) as soon as available and in any event within seventy-five (575) Business Days following days after the date on which Parent files or is required to file its Annual Report on Form 10-K with end of each fiscal year of Carrier Enterprise, a copy of the SECannual audited report for such fiscal year for Carrier Enterprise, containing a consolidated balance sheet for Parent and its Subsidiaries of Carrier Enterprise as of the end of such fiscal year, year and the related consolidated statements of income, shareholdersstockholders’ equity and cash flows (together with all footnotes thereto) of Carrier Enterprise for such fiscal year, all in reasonable detail and setting forth in each case in comparative form the figures for the previous fiscal year, accompanied all in reasonable detail and reported on by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of nationally recognized national standing reasonably (without a “going concern” or like qualification or exception, and without any qualification or exception not acceptable to Lenders in their sole discretion) to the Administrative Agent, which report effect that such financial statements present fairly in all material respects the financial condition and opinion shall be prepared the results of operations of Carrier Enterprise for such fiscal year on a consolidated basis in accordance with GAAP and which shall not be that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(e) as soon as available and in any event within forty (40) days after the end of each of the first three (3) fiscal quarters of each fiscal year of Carrier Enterprise, an unaudited consolidated balance sheet of Carrier Enterprise as of the end of such fiscal quarter and the related unaudited consolidated statements of income and cash flows of Carrier Enterprise for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of Carrier Enterprise’s previous fiscal year, all certified by the chief financial officer or treasurer of Carrier Enterprise as presenting fairly in all material respects the financial condition and results of operations of Carrier Enterprise on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(f) promptly following any Impermissible Qualificationrequest therefor, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; provided thatand
(g) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial statements for condition of the fiscal years ending 2018 and 2019 Borrower or any Subsidiary as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.1(a) or (b) or Section 5.2(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be subject to an Impermissible Qualification; provided further thatdelivered electronically and if so delivered, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed in Section 10.1; or (ii) on which such report documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 5.1(c) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the Issuing Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Bank and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.11); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available via through a portion of the SEC’s XXXXX system or Platform designated “Public Investor”; and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a successor system related thereto;portion of the Platform not designated “Public Investor”.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Watsco Inc), Revolving Credit Agreement (Watsco Inc)
Financial Statements and Other Information. The Borrower Borrowers will furnish deliver to the Administrative Agent:Agent (who will distribute to each Lender):
(a) as soon as available and in any event within 30 90 days after the end of each month (including Fiscal Year of the last month Borrowers, a copy of each fiscal quarter)the annual audited report for such Fiscal Year for the Borrowers and their Subsidiaries, containing a consolidated balance sheet for Parent of the Borrowers and its their Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrowers and their Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and reported on by PricewaterhouseCoopers, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of such audit) to the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrowers and its their Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP consistently applied and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available (i) and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of 120 days after the end of each Fiscal Year of each Regulated Insurance Company, the Annual Statement of such quarter, and the related consolidated statements of income and cash flows Regulated Insurance Company for such quarter and Fiscal Year as filed with the portion Applicable Insurance Regulatory Authority in such Regulated Insurance Company’s state of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal yeardomicile, together with a certificate the signature of a Responsible the Chief Financial Officer of the Borrower stating Borrowers certifying that such financial statements fairly present in all material respects Annual Statement presents the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared Regulated Insurance Company in accordance with GAAPSAP, subject and (ii) the opinion of an independent public accountant firm of nationally recognized standing who has audited the Annual Statement referenced in clause (i) immediately above (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to changes resulting from normalscope of audit), year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject but only to the public reporting requirements of the Exchange Actextent such Regulated Insurance Company is required by applicable law to obtain, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed or otherwise elects to satisfy the requirements of this Section 8.01(b) on the date on which obtain, such report is first available via the SEC’s XXXXX system or a successor system related theretoan audit and opinion;
(c) as soon as available and in any event within five (5) Business Days following 45 days after the date on which Parent files or is required to file its Annual Report on Form 10-K with end of each Fiscal Quarter of the SECBorrowers, a an unaudited consolidated balance sheet for Parent of the Borrowers and its their Subsidiaries as of the end of such fiscal year, Fiscal Quarter and the related unaudited consolidated statements of income, shareholders’ equity income and cash flows of the Borrowers and their Subsidiaries for such fiscal yearFiscal Quarter and the then elapsed portion of such Fiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of Borrowers’ previous fiscal yearFiscal Year and in each case prepared in accordance with GAAP consistently applied;
(d) as soon as available and in any event within 60 days after the end of each Fiscal Quarter of each Regulated Insurance Company, accompanied quarterly financial statements of such Regulated Insurance Company for such Fiscal Quarter and as filed with the Applicable Insurance Regulatory Authority in such Regulated Insurance Company’s state of domicile, together with the signature of the Chief Financial Officer of the Borrowers certifying that such Annual Statement presents the financial condition and results of operations of such Regulated Insurance Company in accordance with SAP;
(e) as soon as available, and in any event no more than 60 days after the end of each Fiscal Year of the Borrowers, an annual business plan and budget of the Borrower and its Subsidiaries on a consolidated basis, including forecasts prepared by a report management of the Borrowers of consolidated balance sheets, statements of income or operations and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable cash flows, in each case in form and substance satisfactory to the Administrative Agent, of the Borrowers and their Subsidiaries on a quarterly basis for the immediately succeeding Fiscal Year;
(f) concurrently with the delivery of the financial statements referred to in clauses (a) and (c) above, a Compliance Certificate substantially in the form of Exhibit 5.1(f) signed by a Responsible Officer of the Borrowers, (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which report the Borrowers have taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in ARTICLE VI, and opinion (iii) stating whether any change in GAAP or the application thereof has occurred since the date of the latest delivery of the Borrowers’ audited financial statements referred to in clause (a) above and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such certificate; provided, however, that no action shall be prepared required by the Borrowers under this clause (iii) to the extent any such change in GAAP or the application thereof does not affect or apply to the Borrowers and their Subsidiaries, including the presentation by the Borrowers of their financial statements;
(g) concurrently with the delivery of the financial statements referred to in clause (a) above, a list of all sales or other dispositions of assets made pursuant to Section 7.6(i) of this Agreement by the Borrowers and their Restricted Subsidiaries during the Fiscal Year most recently ended and for which the proceeds of such sales or dispositions are used to replace assets, including a description of the type of replacement assets and amount and type of other proceeds, if any, received from such sales or other dispositions;
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the Borrowers or any Restricted Subsidiary as the Administrative Agent or any Lender may reasonably request. In the event that any financial statement delivered pursuant to clauses (a) or (c) immediately above or any Compliance Certificate is shown to be inaccurate during the term of this Agreement, and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then (i) the Borrowers shall immediately deliver to the Administrative Agent a corrected Compliance Certificate for such Applicable Period, (ii) the Applicable Margin for such Applicable Period shall be determined in accordance with GAAP the corrected Compliance Certificate, and (iii) the Borrowers shall immediately pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the Administrative Agent to the Obligations. This Section 5.1 shall not be subject to any Impermissible Qualification; provided that, limit the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements rights of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K Administrative Agent or the Lenders with the SEC shall be deemed respect to satisfy the requirements of this Section 8.01(c2.11(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;and ARTICLE VIII.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Fortegra Financial Corp), Revolving Credit Agreement (Fortegra Financial Corp)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative Agent:Agent (which the Administrative Agent shall forward to each Lender):
(a) as soon as available and in any event event, in the case of the consolidated statements required hereunder only, within 30 120 days after the end of each month (including Fiscal Year of Borrower, a copy of the last month of each fiscal quarter)annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with, in the case of consolidated financial statements, all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and, in the preceding fiscal year, together with a certificate of a Responsible Officer case of the Borrower stating consolidated financial statements only, reported on by PriceWaterhouse Coopers or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of such audit, except for customary qualifications pertaining to debt maturities with respect to the Loans occurring within 12 months of such audit; provided that the auditor’s report accompanying such financial statements shall be permitted to include customary qualifications pertaining to debt maturities with respect to any Indebtedness occurring within 12 months of such audit or any potential inability to satisfy any financial maintenance covenant with respect to any Indebtedness on a future date or in a future period) to the effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five 45 days after the end of each Fiscal Quarter of the Borrower (5) Business Days following with respect to the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SECfirst three Fiscal Quarters of each Fiscal Year), a an unaudited consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements statement of income and consolidated statement of cash flows of the Borrower and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in quarter and the preceding fiscal corresponding portion of Borrower’s previous Fiscal Year (it being understood that quarterly financial statements are not required to have footnote disclosures and are subject to normal year-end adjustments);
(c) (1) as of the earlier of the date required by the DOE for annual delivery or the date actually delivered to the DOE for each calendar year, together with and in any event not later than July 1 of such calendar year, a certificate calculation of the Consolidated DOE Financial Responsibility Composite Score for the Borrower as of the end of the immediately preceding Fiscal Year, attached as an exhibit to a DOE Compliance Certificate signed by the principal executive officer and the principal financial officer of the Borrower, and (2) notice of the DOE’s calculation of the Consolidated DOE Financial Responsibility Score for the Borrower promptly, but in any event no later than the next date on which a Compliance Certificate is required to be delivered pursuant to Section 5.1(d), following receipt by the Borrower of a Responsible Officer notification from the DOE that the Consolidated DOE Financial Responsibility Score for the Borrower calculated by the DOE was less than 1.5 for any Fiscal Year;
(d) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a Compliance Certificate signed by the principal executive officer and the principal financial officer of the Borrower;
(e) within 60 days after the end of each Fiscal Year, a budget and projection of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretonext succeeding Fiscal Year;
(cf) promptly after the same become publicly available, notice of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as soon as available and the case may be;
(g) promptly upon such change, written notice of any change (i) in any event within five Loan Party’s corporate name, (5ii) Business Days in the jurisdiction of organization or formation of any Loan Party, (iii) in any Loan Party’s identity or form of organization or (iv) in any Loan Party’s Federal Taxpayer Identification Number. The Borrower agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the Uniform Commercial Code or otherwise that are required in order for the Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the date on which Parent files or is required Collateral. The Borrower also agrees promptly to file its Annual Report on Form 10-K with notify the SEC, a consolidated balance sheet for Parent and its Subsidiaries as Administrative Agent if any material portion of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied Collateral is damaged or destroyed;
(h) promptly following any request therefor (1) by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report such other information regarding the results of operations, business affairs and opinion shall be financial condition of the Borrower or any Restricted Subsidiary as the Administrative Agent or any Lender may reasonably request and (2) by the Administrative Agent or any Lender, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the PATRIOT Act or other applicable anti-money laundering laws; and
(i) to the extent there exist any Unrestricted Subsidiaries, concurrently with the financial statements delivered pursuant to Sections 5.1(a) or (b) above, as applicable, or the projections delivered pursuant to Section 5.1(e) above, a summary of pro forma adjustments (if any) necessary to eliminate the accounts of Unrestricted Subsidiaries from the financial statements delivered pursuant to Sections 5.1(a) or (b) above, as applicable or the projections delivered pursuant to Section 5.1(e) above, in each case prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein. Notwithstanding any other provision of this Agreement, Lenders and Administrative Agent acknowledge and agree that nothing in this Agreement or the other Loan Documents shall require the Borrower and its Subsidiaries (i) to disclose education records and information from such records in a manner inconsistent with the requirements of the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g (or any successor statute); its implementing regulations, 34 C.F.R. pt. 99 (or any successor regulation); applicable accreditation standards, policies, and procedures; and applicable state laws and regulations or (ii) to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that (a) constitutes non-financial trade secrets or non-financial proprietary information, (b) in respect of which shall not be subject disclosure to the Administrative Agent or any Impermissible Qualification; provided thatLender (or their respective representatives or contractors) is prohibited by any Requirement of Law, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that(c) violates any bona fide binding contractual confidentiality obligations by which it is bound, so long as Parent (I) such obligations were not entered into in contemplation of this Agreement and (II) such obligations are owed by it to a Person that is not an Affiliate or (d) is subject to attorney-client or similar privilege or constitutes attorney work product. Documents required to be delivered pursuant to Section 5.01(a), (b) or (f) (to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K extent any such documents are included in materials otherwise filed with the SEC Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to satisfy the requirements of this Section 8.01(c) have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet; or (ii) on which such report is first available via documents are posted on the SECBorrower’s XXXXX system behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a successor system related thereto;commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Strategic Education, Inc.), Revolving Credit and Term Loan Agreement (Strategic Education, Inc.)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 30 ninety (90) days after the end of each month (including Fiscal Year, a copy of the last month of each fiscal quarter)annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and reported on by Ernst & Young or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of such audit) to the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards. It is understood and agreed that the requirements of this Section 5.1(a) (x) shall be satisfied by delivery of the applicable annual report on Form 10-K of the Borrower to changes resulting from normal, year-end audit adjustments the Securities and except for Exchange Commission if delivered within the absence applicable time period noted herein and is available to the Lenders on XXXXX and (y) are effective as of notesthe Effective Date;
(b) as soon as available and in any event within forty-five (545) Business Days following days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each Fiscal Quarter of each Fiscal Year (other than the SEClast Fiscal Quarter), a an unaudited consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in quarter and the preceding fiscal yearcorresponding portion of the previous Fiscal Year, together with a certificate of a Responsible Officer all certified by the chief financial officer, treasurer or controller of the Borrower stating that such financial statements as presenting fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, normal year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;of
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement, Revolving Credit and Term Loan Agreement (Aaron's Inc)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentAgent for distribution to each Lender:
(a) as soon as available and in any event within 30 90 days after the end of each month Fiscal Year of Parent, commencing with the Fiscal Year ending December 31, 2020, (including i) a copy of the last month of each fiscal quarter)annual audited report for such Fiscal Year for Parent and its Subsidiaries, containing a consolidated balance sheet for of Parent and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements statement of income and statements of stockholders’ equity and cash flows (together with all footnotes thereto) of Parent and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and reported on by Xxxxx Xxxxxxxx LLP or other independent public accountants of nationally recognized standing (which audit shall not contain any “going concern”, scope of audit or other qualification other than a qualification resulting from any breach or anticipated breach of any financial covenant or the preceding fiscal year, together with a certificate of a Responsible Officer impending maturity of the Borrower stating Loans) to the effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAPGAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, subject (ii) a reasonably detailed management discussion and analysis with respect thereto and (iii) to changes resulting the extent any Unrestricted Subsidiary exists on such date, company prepared consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries from normal, year-end audit adjustments and except for the absence of notessuch consolidated financial statements;
(b) as soon as available and in any event within five 45 days after the end of each Fiscal Quarter of Parent (5) Business Days following other than the date on which Parent files or is required to file a Quarterly Report on Form 10-Q fourth Fiscal Quarter of each Fiscal Year of Parent), commencing with the SECFiscal Quarter ending March 31, a 2021, (i) an unaudited consolidated balance sheet for of Parent and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of Parent and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period Fiscal Quarter and the corresponding portion of Parent’s previous Fiscal Year, (ii) a reasonably detailed management discussion and analysis with respect thereto and (iii) to the extent any Unrestricted Subsidiary exists on such date, consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries from such consolidated financial statements;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section, a Compliance Certificate signed by the preceding fiscal year, together with a certificate of a Responsible Officer of Parent (i) certifying as to whether there exists a Default or Event of Default on the Borrower stating date of such certificate and, if an Event of Default then exists, specifying the details thereof and the action which Parent has taken or proposes to take with respect thereto, (ii) to the extent applicable, setting forth in reasonable detail calculations demonstrating compliance with the Financial Covenants and (iii) listing each Subsidiary as a Restricted Subsidiary or Unrestricted Subsidiary, as of the end of such Fiscal Year or Fiscal Quarter (only to the extent that there have been any changes in the identity or status as a Restricted Subsidiary or Unrestricted Subsidiary of any such Subsidiaries since the Closing Date or the most recent Compliance Certificate previously delivered);
(d) within 60 days after the end of each Fiscal Year, commencing with the end of the Fiscal Year ending December 31, 2020, financial projections for the current Fiscal Year, including a business plan, monthly operations and cash flow budgets, and a capital expenditure budget for Parent and its Restricted Subsidiaries;
(e) [reserved]; and
(f) promptly following any reasonable written request therefor, (i) such other information regarding the Collateral, results of operations and financial condition of Parent and its Restricted Subsidiaries as the Administrative Agent (or any Lender through the Administrative Agent) may reasonably request, except, in each case, (A) to the extent such disclosure is prohibited by contractual confidentiality obligations (and such contract was not entered into in contemplation of this clause (A)) or applicable law or (B) such information is subject to attorney-client privilege or constitutes attorney work product and (ii) information and documentation with respect to any change in the information provided in any Beneficial Ownership Certification. Notwithstanding the foregoing, the obligations in Section 5.1(a)(i) and 5.1(b)(i) may be satisfied with respect to financial information of Parent and its Subsidiaries by furnishing Parent’s Form 10-K or 10-Q or other report, proxy statement or materials, as applicable, filed with the Securities and Exchange Commission; provided that, to the extent such information is in lieu of information required to be provided under Section 5.1(a)(i), such materials are accompanied by a report and opinion of Xxxxx Xxxxxxxx LLP or other independent public accountants of nationally recognized standing (which report shall not contain any “going concern”, scope of audit or other qualification other than a qualification resulting from any breach or anticipated breach of any financial covenant or the impending maturity of the Loans) to the effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared basis in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, that the examination by such accountants in connection with such consolidated financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K has been made in accordance with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;generally accepted auditing standards.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Repay Holdings Corp), Revolving Credit Agreement (Repay Holdings Corp)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative Agent:Agent (for distribution to each Lender):
(a) as soon as available and in any event within 30 90 days after the end of each month (including Fiscal Year of the last month Borrower, commencing with the Fiscal Year ending December 31, 2020, a copy of each fiscal quarter)the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and reported on by BDO USA, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the preceding fiscal year, together with a certificate scope of a Responsible Officer such audit) (other than any “going concern” or similar qualification or exception related to the maturity of the Borrower stating Obligations or any other Indebtedness not prohibited hereunder) to the effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five (5) Business Days following 45 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, commencing with the SECFiscal Quarter ending March 31, a 2021, an unaudited consolidated and consolidating balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in Fiscal Quarter and the preceding fiscal year, together with a certificate of a Responsible Officer corresponding portion of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date Borrower’s previous Fiscal Year (if applicable) and the results of operations of Parent and its Subsidiaries corresponding figures for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except budget for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretocurrent Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the chief financial officer of the Borrower (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the Financial Covenants, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, (iv) identifying each Immaterial Subsidiary existing on the date of such certificate and (v) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries that impacts such financial statements, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate.
(d) concurrently with the delivery of the financial statements referred to in subsection (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of their examination of such financial statements of any Default or Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) [reserved];
(f) as soon as available and in any event within 60 days after the end of the calendar year, forecasts and a pro forma budget prepared on a quarterly basis for the succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow for the Borrower and its Subsidiaries;
(g) within five (5) Business Days after receipt thereof, copies of any quarterly or annual financial statements of any Tenant with respect to an Unencumbered Pool Property (or the parent company of such Tenant) to the extent provided to the Borrower or any other Loan Party;
(h) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the SEC, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(i) promptly following any request therefor, such other information with respect to the date on which Parent files Properties (including Unencumbered Pool Properties) as the Administrative Agent or any Lender through the Administrative Agent, may reasonably request and as is reasonably available to the Borrower or any of its Subsidiaries;
(j) promptly, upon any change in the Borrower’s Credit Rating occurring after the Investment Grade Rating Date, a certificate stating that the Borrower’s Credit Rating has changed and the new Credit Rating that is in effect; and
(k) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request. So long as the Borrower is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP periodic reports under Section 13(a) or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements Section 15(d) of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC Borrower shall be deemed to satisfy have satisfied its obligation to deliver the requirements financial statements referred to in clauses (a) and (b) above upon the filing of this Section 8.01(c) on the date on which such report is first available via reports with the SEC’s XXXXX system or a successor system related thereto;.
Appears in 2 contracts
Samples: Credit Agreement (Community Healthcare Trust Inc), Credit Agreement (Community Healthcare Trust Inc)
Financial Statements and Other Information. The Borrower or Parent will furnish deliver to the Administrative Agent:
(a) as soon as available and in any event within 30 120 days after the end of each month Fiscal Year of Parent (including beginning with the last month of each fiscal quarteryear ended March 31, 2022), a copy of the annual audited financial statements for such Fiscal Year for Parent and its Subsidiaries, containing (i) a consolidated balance sheet for of Parent and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of Parent and its Subsidiaries for such month and Fiscal Year, setting forth in each case in comparative form the portion figures for, as of the fiscal year through the end of the previous Fiscal Year and (ii) financial information of Parent and its Subsidiaries excluding any Securitization Subsidiary presented in a note to the consolidated financial statements (segmented information) referred to in clause (i) or on a separate schedule attached to such monthconsolidated financial statement or in a separate statement derived from such consolidated financial statements, all in reasonable detail and setting forth in comparative form audited by Deloitte & Touche LLP or another independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the figures for scope of such audit) to the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with international auditing standards;
(b) as soon as available and in any event within five (5) Business Days following 60 days after the date on which end of each of the first three Fiscal Quarters of Parent files or is required to file a Quarterly Report on Form 10-Q beginning with the SECfiscal quarter ending September 30, a 2021, an unaudited consolidated balance sheet for of Parent and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of Parent and its Subsidiaries for such quarter and the portion or as of the fiscal year through the end of such quarterFiscal Quarter and the then elapsed portion of such Fiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period Fiscal Quarter and the corresponding portion of Parent’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section, a Compliance Certificate signed by the principal executive officer or the principal financial officer of Parent (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action which Parent has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the preceding fiscal year, together with a certificate of a Responsible Officer identity of the Borrower Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be (including an updated list of Immaterial Subsidiaries), and (iv) stating that such whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries which is applicable to Parent and its Subsidiaries based upon their operations as at such date presently conducted and which has an effect on the results of operations financial statements of Parent and its Subsidiaries for Subsidiaries, and, if any such change has occurred, specifying the period ended impact of such change on the financial statements accompanying such date Compliance Certificate and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence effect of notes; provided that, so long as Parent is subject to such change on the public reporting requirements calculations of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which financial covenants set forth in such report is first available via the SEC’s XXXXX system or a successor system related theretoCompliance Certificate;
(cd) [reserved];
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by Parent to its shareholders generally, as the case may be;
(f) as soon as available and in any event within five (5) Business Days following 120 days after the date on which Parent files or is required to file its Annual Report on Form 10-K with the SECend of each Fiscal Year, a consolidated balance sheet for Parent and its Subsidiaries Valuation prepared by an Approved Valuation Consultant as of the end of such fiscal yearFiscal Year;
(g) on or prior to the earlier of (i) the date that the first annual audited report is provided pursuant to Section 5.1(a) or (ii) 120 days after the end of the first Fiscal Year of Parent occurring after the Closing Date, Schedule 1.1(b) shall be updated to list Music Product representing 80% of the sum of (x) Consolidated Net Publisher’s Share and (y) Consolidated Net Label Share and Schedule 4.22 shall be updated with the related consolidated statements of income, shareholders’ equity and cash flows information for such fiscal yearMusic Product required by Schedule 4.22 and with respect to those representations in Sections 4.22(b) and 4.22(c) as such representations apply to such Music Product;
(h) in the event the purchase price of all Permitted Acquisitions or other Acquisitions approved by the Required Lenders consummated in a Fiscal Year which are not the subject of a Valuation exceeds the Financial Covenant Valuation Threshold, all at the election of and at the expense of the Borrower, a Valuation of the assets acquired in reasonable detail such Permitted Acquisitions prepared by an Approved Valuation Consultant; and
(i) promptly following any request therefor, such other information regarding the results of operations, business affairs and setting forth in comparative form financial condition of the figures for Parent or any of its Subsidiaries as the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP Administrative Agent or another firm of independent certified public accountants of recognized national standing reasonably acceptable to any Lender (through the Administrative Agent) may reasonably request. Information required to be delivered pursuant to clauses (a), which report (b) and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements (e) of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC this Section shall be deemed to satisfy have been delivered if such information, or the requirements of annual or quarterly reports containing such information, shall have been posted on Syndtrak, Intralinks, or a similar site by the Administrative Agent or shall be available on the Securities and Exchange Commission’s website at xxxx://xxx.xxx.xxx. Information required to be delivered pursuant to this Section 8.01(c) on may also be delivered by electronic communications pursuant to procedures approved by the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Reservoir Media, Inc.), Credit Agreement (Reservoir Media, Inc.)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentAgent for distribution to each Lender:
(a) as soon as available and in any event within 30 90 days after the end of each month Fiscal Year of the Borrower, commencing with the Fiscal Year ending December 31, 2019, (including i) a copy of the last month of each fiscal quarter)annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements statement of income and statements of stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and reported on by Xxxxx Xxxxxxxx LLP or other independent public accountants of nationally recognized standing (which audit shall not contain any “going concern”, scope of audit or other qualification other than a qualification resulting from any breach or anticipated breach of any financial covenant or the preceding fiscal year, together with a certificate of a Responsible Officer impending maturity of the Borrower stating Loans) to the effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAPGAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, subject (ii) a reasonably detailed management discussion and analysis with respect thereto and (iii) to changes resulting the extent any Unrestricted Subsidiary exists on such date, company prepared consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries from normal, year-end audit adjustments and except for the absence of notessuch consolidated financial statements;
(b) as soon as available and in any event within five 45 days after the end of each Fiscal Quarter of the Borrower (5) Business Days following other than the date on which Parent files or is required to file a Quarterly Report on Form 10-Q fourth Fiscal Quarter of each Fiscal Year of the Borrower), commencing with the SECFiscal Quarter ending September 30, a 2019, (i) an unaudited consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year, (ii) a reasonably detailed management discussion and analysis with respect thereto and (iii) to the extent any Unrestricted Subsidiary exists on such date, consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries from such consolidated financial statements;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section, a Compliance Certificate signed by the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate and, if an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) to the extent applicable, setting forth in reasonable detail calculations demonstrating compliance with the Financial Covenant and (iii) listing each Subsidiary as a Restricted Subsidiary or Unrestricted Subsidiary, as of the end of such Fiscal Year or Fiscal Quarter (only to the extent that there have been any changes in the identity or status as a Restricted Subsidiary or Unrestricted Subsidiary of any such Subsidiaries since the Closing Date or the most recent Compliance Certificate previously delivered);
(d) within 45 days after the end of each Fiscal Year, commencing with the end of the Fiscal Year ending December 31, 2019, financial projections for the current Fiscal Year, including a business plan, monthly operations and cash flow budgets, and a capital expenditure budget for the Borrower and its Restricted Subsidiaries;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials which the Borrower or any Restricted Subsidiary shall file with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, as the case may be; and
(f) promptly following any reasonable written request therefor, (i) such other information regarding the Collateral, results of operations and financial condition of the Borrower and its Restricted Subsidiaries as the Administrative Agent (or any Lender through the Administrative Agent) may reasonably request, except, in each case, (A) to the extent such disclosure is prohibited by contractual confidentiality obligations (and such contract was not entered into in contemplation of this clause (A)) or applicable law or (B) such information is subject to attorney-client privilege or constitutes attorney work product and (ii) information and documentation with respect to any change in the information provided in any Beneficial Ownership Certification. Notwithstanding the foregoing, the obligations in Section 5.1(a)(i) and 5.1(b)(i) may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (I) the applicable financial statements of the Borrower (or any direct or indirect parent of the Borrower) or (II) the Borrower’s (or any direct or indirect parent thereof), as applicable, Form 10-K or 10-Q, as applicable, filed with the Securities and Exchange Commission; provided that, with respect to clauses (I) and (II), (i) to the extent such information relates to a parent of the Borrower, such information is accompanied by consolidating information (which may be set forth in footnotes to the financial information) that explains in reasonable detail the differences between the information relating to such parent and its Subsidiaries, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.1(a)(i), such materials are accompanied by a report and opinion of Xxxxx Xxxxxxxx LLP or other independent public accountants of nationally recognized standing (which report shall not contain any “going concern”, scope of audit or other qualification other than a qualification resulting from any breach or anticipated breach of any financial covenant or the impending maturity of the Loans) to the effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower (or such parent entity) and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared basis in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, that the examination by such accountants in connection with such consolidated financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K has been made in accordance with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;generally accepted auditing standards.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Repay Holdings Corp), Revolving Credit and Term Loan Agreement (Repay Holdings Corp)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent:
(a) as soon as available and in any event within 30 days after *** following the end of each month date Borrower files or is required to file (including or would be required to file if it were subject to the last month of each fiscal quarter)reporting requirements under the Exchange Act) a Quarterly Report on Form 10-Q with the SEC, a the consolidated balance sheet for Parent and its Subsidiaries sheets of the Obligors as of the end of such monthquarter, and the related consolidated statements of income income, shareholders’ equity and cash flows of Borrower and its Subsidiaries for such month quarter and the portion of the fiscal year through the end of such monthquarter, prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries as at such date and the results of operations of Parent Borrower and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAPGAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent Borrower is subject to the public reporting requirements of the Exchange Act, ParentBorrower’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(a) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(b) as soon as available and in any event within *** following the date Borrower files or is required to file (or would be required to file if it were subject to the reporting requirements under the Exchange Act) its Annual Report on Form 10-K with the SEC, the consolidated balance sheets of Borrower and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries for such fiscal year, prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of Cherry Bekaert LLP or another firm of independent certified public accountants of recognized national standing approved by the Administrative Agent, such approval not to be unreasonably withheld or delayed, which report and opinion shall be prepared in accordance with generally accepted auditing standards; provided that, so long as Borrower is subject to the public reporting requirements of the Exchange Act, Borrower’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five [reserved]
(5d) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K together with the SECfinancial statements required pursuant to Sections 8.01(a) and (b), a consolidated balance sheet for Parent and its Subsidiaries compliance certificate of a Responsible Officer as of the end of such the applicable accounting period (which delivery may, unless a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes) in the form of Exhibit D (a “Compliance Certificate”) including details of any material issues that are raised by auditors;
(e) promptly upon receipt thereof, copies of all letters of representation signed by an Obligor to its auditors and copies of all auditor reports delivered for each fiscal quarter;
(f) as soon as available, but in no event delivered later than *** after the end of each fiscal year, a consolidated financial forecast for Borrower and its Subsidiaries for the related following five fiscal years, including forecasted consolidated balance sheets, consolidated statements of income, shareholders’ equity and cash flows for such fiscal yearof Borrower and its Subsidiaries;
(g) promptly after the same are released, copies of all press releases, unless the same are available publicly via PR Newswire, Bloomberg, Yahoo! Finance or similar services;
(h) promptly, and in reasonable detail and setting forth in comparative form the figures for the previous fiscal yearany event within *** after receipt thereof by an Obligor thereof, accompanied by a report and opinion thereon copies of RBSM LLP each notice or another firm of independent certified public accountants of recognized national standing reasonably acceptable other correspondence received from any securities regulator or exchange to the authority of which an Obligor may become subject from time to time concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of such Obligor;
(i) the information regarding insurance maintained by Borrower and its Subsidiaries as required under Section 8.05;
(j) within *** following Administrative Agent’s request at any time, which report proof of Borrower’s compliance with Section 10.01; and
(k) within *** following the occurrence of any meeting of Borrower’s Board of Directors or holders of Borrower’s Equity Interests, as applicable, copies of all statements, reports and opinion shall be prepared in accordance with GAAP and which shall not be subject notices (including board kits) made available to any Impermissible QualificationBorrower’s Board of Directors or holders of Borrower’s Equity Interests; provided that, the financial statements for the fiscal years ending 2018 and 2019 that any such material may be subject redacted by Borrower to an Impermissible Qualification; provided further that, so long as Parent is subject exclude information relating to the public reporting requirements of Lenders (including Borrower’s strategy regarding the Exchange ActLoans) and provided, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first further that materials made available via the SEC’s XXXXX system or a successor system related thereto;shall be deemed to satisfy the requirements of this Section 8.01(k) upon being made so available.
Appears in 2 contracts
Samples: Term Loan Agreement (Biodelivery Sciences International Inc), Term Loan Agreement (Biodelivery Sciences International Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative AgentAgent who will distribute to each Lender:
(a) with respect to Vitro,
1. annual reports on Form 20-F (or any successor form) of Vitro containing the information required to be contained therein (or such successor form) as soon well as available (x) segment disclosure with respect to the Borrower and its Restricted Subsidiaries substantially similar to that provided in the annual report on Form 20-F for Vitro for the year ended December 31, 2003 and (y) additional information with respect to the Borrower’s and its Subsidiaries in the section “Item 5. Operating and Financial Review and Prospects” of such annual reports that would substantially comply with “Item 5.A. Operating Results” (including a discussion of net sales, cost of sales, general, administrative and selling expenses, operating income and net income for applicable periods) and “Item 5.B. Liquidity and capital resources” as applied to the Borrower and its Subsidiaries, within the time period required under the rules of the SEC for the filing of Form 20-F (or any event successor form) by foreign private issuers subject thereto, and
2. reports on Form 6-K (or any successor form) of Vitro including, whether or not required, unaudited quarterly financial statements (which shall include at least a balance sheet, income statement and statement of changes in financial position, in each case prepared in accordance with Mexican GAAP as in effect from time to time) along with other financial information and a discussion of results in each case with (i) at least the level of information provided by Vitro in its Form 6-K for the first quarter of 2004 and (ii) a discussion of net sales, cost of sales, general, administrative and selling expenses, operating income and net income of the Borrower and its Subsidiaries covering the periods for which the discussion of results is presented for Vitro, within 30 60 days after the end of each month (including of the last month first three fiscal quarters of each fiscal quarter), a consolidated balance sheet for Parent and its Subsidiaries as year,
(b) (notwithstanding that the Borrower may not be subject to the reporting requirements of Section 13 or 15(d) of the end of such monthU.S. Securities Exchange Act) with respect to the Borrower, audited annual and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such unaudited quarterly financial statements fairly present (which will include at least a balance sheet, income statement and statement of changes in all material respects the financial condition of Parent position and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been notes thereto, in each case prepared in accordance with Mexican GAAP with an explanation of the principal differences between Mexican GAAP and U.S. GAAP, subject in each case as in effect from time to changes resulting from normaltime), year-end audit adjustments and except for the absence of notes;
(b) as soon as available in each case in English and in any event within five (5) Business Days following the date on which Parent files or is content comparable to that required to file a Quarterly Report on Form 10under Regulation S-Q with X and Regulation S-K of the SEC, a consolidated balance sheet with respect to any audited annual financial statements, within the time period required under the rules of the SEC for Parent and its Subsidiaries as the filing of Form 20-F (or any successor form) by foreign private issuers subject thereto or with respect to any unaudited quarterly financial statements, within 60 days after the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion each of the first three fiscal year through the end quarters of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding each fiscal year, together with a certificate of a Responsible Officer of provided that if at any time the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of Section 13 or 15(d) of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q it shall file with the SEC the information described above in clause (a) with respect to itself, in which case it shall not be deemed required to satisfy also provide the requirements of information described above in this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretoclause (b);
(c) concurrently with each delivery of financial statements under clause (b) above, a certificate of the Chief Financial Officer of the Borrower (i) certifying as soon as available to whether a Default has occurred and is continuing and, if a Default has occurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto and (ii) stating whether any change in any event within five (5) Business Days following Mexican GAAP or in the application thereof has occurred since the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end Borrower’s December 31, 2003 audited financial statements referred to in Section 3.06 or delivered pursuant to this Section and, if any such change has occurred, specifying the effect of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, change on the financial statements for accompanying such certificate; and
(d) promptly following any request therefor, such other information regarding the fiscal years ending 2018 operations, business affairs and 2019 may be subject to an Impermissible Qualification; provided further thatfinancial condition of Borrower or any of its Subsidiaries, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K or compliance with the SEC shall be deemed to satisfy terms of any Loan Document, as the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system Administrative Agent or a successor system related thereto;any Lender may reasonably request.
Appears in 2 contracts
Samples: Loan Agreement (Vitro Sa De Cv), Loan Agreement (Vitro Sa De Cv)
Financial Statements and Other Information. The Borrower will furnish Deliver to Agent, with copies to each Lender, each of the Administrative financial statements, reports, or other items set forth set forth below at the following times in form satisfactory to Agent:
(a) : as soon as available and available, but in any event within 30 days after the end of each month of the first two months during each of Borrower’s fiscal quarters (including each such date, the last month of each fiscal quarter“Monthly Deadline”), a (a) (i) an unaudited consolidated balance sheet for Parent sheet, income statement and statement of cash flows covering Borrower’s and its Subsidiaries as of the end of Subsidiaries’ operations during such monthperiod, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form together with (ii) a report showing the figures for the corresponding fiscal period of the immediately preceding fiscal year in comparative form and (iii) a Compliance Certificate; provided, however, that if Borrower has included any of the items listed in clause (a)(i) above in a report filed with the SEC by the applicable Monthly Deadline, then in lieu of the foregoing Borrower may (x) provide Agent written notice (in the preceding Compliance Certificate or elsewhere) no later than 1 Business Day after the applicable Monthly Deadline that Borrower has included such items in a report filed with the SEC and describe in reasonable detail the report and the items included therein and (y) deliver to Agent no later than 1 Business Day after the applicable Monthly Deadline copies of any items listed in clause (a)(i) above that were not included in any report filed with the SEC by the applicable Monthly Deadline and a Compliance Certificate; as soon as available, but in any event within 45 days after the end of each of Borrower’s fiscal yearquarters during each of Borrower’s fiscal years (each such date, the “Quarterly Deadline”), (b) (i) an unaudited consolidated balance sheet, income statement and statement of cash flows covering Borrower’s and its Subsidiaries’ operations during such period, together with a certificate of a Responsible Officer report showing the figures for the corresponding fiscal period of the immediately preceding fiscal year in comparative form, and (ii) a Compliance Certificate. provided, further, however, that if Borrower stating has included any of the items listed in clause (b)(i) above in a report filed with the SEC by the applicable Quarterly Deadline, then in lieu of the foregoing Borrower may (x) provide Agent written notice (in the Compliance Certificate or elsewhere) no later than 1 Business Day after the applicable Quarterly Deadline that Borrower has included such items in a report filed with the SEC and describe in reasonable detail the report and the items included therein and (y) deliver to Agent no later than 1 Business Day after the applicable Quarterly Deadline copies of any items listed in clause (b)(i) above that were not included in any report filed with the SEC by the applicable Quarterly Deadline and a Compliance Certificate. As soon as available, but in any event within 90 days after the end of each of Borrower’s fiscal years (each such date, the “Annual Deadline”), (c) (i) consolidated financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent Borrower and its Subsidiaries for each such fiscal year, audited by independent certified public accountants reasonably acceptable to Agent and certified, without (A) qualification or exception as to the period ended on scope of such date audit, or (B) qualification which relates to the treatment or classification of any item and which, as a condition to the removal of such qualification, would require an adjustment to such item, the effect of which would be to cause any noncompliance with any of the provisions of Article VII of the Agreement, by such accountants to have been prepared in accordance with GAAP, subject GAAP (such audited financial statements to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, include a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quartersheet, income statement, and the related consolidated statements statement of income and cash flows for and, if prepared, such quarter and the portion of the fiscal year through the end of such quarteraccountants’ letter to management), all in reasonable detail and setting forth in comparative form together with a report showing the figures for the corresponding period in the immediately preceding fiscal yearyear in comparative form, together with and (ii) a certificate of a Responsible Officer Compliance Certificate; provided, however, that if Borrower has filed any of the Borrower stating that such financial statements fairly present items listed in all material respects the financial condition of Parent and clause (c)(i) above in its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K annual report with the SECSEC by the applicable Annual Deadline, a consolidated balance sheet for Parent and its Subsidiaries as then in lieu of the end of such fiscal year, and foregoing Borrower may (1) provide Agent written notice (in the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form Compliance Certificate or elsewhere) no later than 1 Business Day after the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an applicable Annual Report on Form Deadline that Borrower has filed its 10-K with the SEC and (2) deliver to Agent no later than 1 Business Day after the applicable Annual Deadline copies of any items listed in clause (c) above that were not included in the Form 10-K annual report filed with the SEC and a Compliance Certificate. As soon as available, but in any event within 30 days prior to the start of (d) copies of Borrower’s Projections, in form and substance (including as to scope and underlying assumptions) satisfactory to Agent, in its reasonable discretion, for the forthcoming fiscal year, month by month for such fiscal year, certified by the chief financial officer of Borrower as being such officer’s good faith estimate of the financial performance of Borrower during the period covered thereby; provided, however that, notwithstanding the foregoing, each of Borrower’s fiscal years, as set forth in Section 5.18 of the Agreement, Borrower shall submit to the Advisory Firm and the Agent a copy of the Borrower’s business plan for the fiscal year ending on or about January 1, 2014 by no later than November 30, 2012. If and when filed by Borrower, (e) Form 10-Q quarterly reports, Form 10-K annual reports, and Form 8-K current reports, (f) any other filings made by Borrower with the SEC, and (g) any other information that is provided by Borrower to its shareholders generally. As soon as available, but in any event within 3 Business Days after the end of each week of each month (each such date, the “Weekly Deadline”) (h) (i) a reasonably detailed cash flows forecast for the next successive 13 weeks, (ii) a detailed aging of the Accounts of the Borrower and its Subsidiaries, at the invoice level on an entity by entity basis, (iii) a summary aging, by vendor, of Borrower’s and its Subsidiaries’ accounts payable on an entity by entity basis, (iv) a detailed report regarding Borrower and its Subsidiaries’ cash and Cash Equivalents on an entity by entity basis, and (v) bookings and backlog detail, as well as shipments by customer; provided however that if the Borrower is in compliance with all of its financial covenants and with the other terms of the Credit Agreement for the quarter ending on or about April 1, 2013, as evidenced by the Borrower’s Compliance Certificate for such quarter, (x) Borrower shall no longer be required to deliver the deliverables set forth in (h)(i), (h)(ii) or (h)(iii) noted above and (y) with respect to the deliverable set forth in (h)(v) above, Borrower shall be deemed required to satisfy deliver such information by the requirements Monthly Deadline rather than the Weekly Deadline. Promptly after execution, receipt or delivery thereof, (i) copies of this Section 8.01(c) on any new material contracts, material amendments to material contracts, notices of termination of any material contracts that Borrower executes or receives in connection with any Material Contract, and notices of material defaults in respect of any Material Contract. provided, however, that if Borrower has included any of the date on which such items listed above in a report is first available via filed with the SEC by the applicable time period required for reporting with the SEC’s XXXXX system , then, in lieu of the foregoing, Borrower may provide Agent written notice no later than 1 Business Day after the applicable deadline that Borrower has included such items in a report filed with the SEC. upon the request of Agent, (j) any other information reasonably requested relating to the financial condition of Borrower or a successor system related thereto;its Subsidiaries.
Appears in 2 contracts
Samples: Credit Agreement (Powerwave Technologies Inc), Credit Agreement (Powerwave Technologies Inc)
Financial Statements and Other Information. The Borrower Borrowers will furnish deliver to the Administrative AgentAgent for delivery to each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower Representative a copy of the annual audited report for such Fiscal Year for the Borrower Representative and its Subsidiaries, containing a consolidated balance sheet of the Borrower Representative and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower Representative and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by Xxxxx Xxxxxxxx LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit except for qualifications resulting solely from the Obligations being classified as short term indebtedness during the one year period prior to the Revolving Commitment Termination Date) to the effect that such financial statements present fairly in all material respects the financial condition and the results of operations of the Borrower Representative and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each Fiscal Quarter of the Borrower Representative, an unaudited consolidated and consolidating balance sheet of the Borrower Representative and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower Representative and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower Representative’s previous Fiscal Year together with management discussion and analysis of financial condition and operating results;
(c) as soon as available and in any event within 30 days after the end of each calendar month (including the last month of each fiscal quarterother than March, June, September and December), a an unaudited consolidated balance sheet for Parent of the Borrower Representative and its Subsidiaries as of the end of such month, calendar month and the related unaudited consolidated statements of income and cash flows of the Borrower Representative and its Subsidiaries for such calendar month and the then elapsed portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in month and the preceding fiscal year, together with a certificate of a Responsible Officer corresponding portion of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notesRepresentative’s previous Fiscal Year;
(d) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower Representative (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrowers have taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower Representative and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate and (v) specifying any change in the identity of the Disqualified Competitors set forth on the Disqualified Competitor List;
(e) as soon as available and in any event within five 30 days after the end of the calendar year, forecasts and a pro forma budget for the succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow;
(5f) Business Days promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrowers to their shareholders generally, as the case may be; and
(g) promptly following any request therefor, subject to applicable laws and confidentiality obligations owing by Borrowers or any of their Subsidiaries to any other Person, such other information regarding the date on which Parent files results of operations, business affairs and financial condition of the Borrowers or is any of their Subsidiaries as the Administrative Agent or any Lender may reasonably request. So long as the Borrowers are required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed Borrowers may satisfy its obligation to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, deliver the financial statements for referred to in clauses (a) and (b) above by delivering such financial statements by electronic mail to such e-mail address as the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; Administrative Agent shall have provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed Borrowers from time to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;time in writing.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Fox Factory Holding Corp), Revolving Credit Agreement (Fox Factory Holding Corp)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent:Agent (who shall promptly furnish a copy to each Lender):
(a) as soon as available and available, but in any event within 30 one hundred (100) days after the end of each month fiscal year of the Borrower (including or, if earlier, the last month of each fiscal quarter10th day after such financial statements are required to be filed with the SEC), a the audited consolidated balance sheet for Parent of the Borrower and its Consolidated Subsidiaries and related statements of operations, stockholders’ equity and cash flows as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such monthyear, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth each case in comparative form the figures for the previous fiscal year, accompanied all reported on by a report and opinion thereon of RBSM KPMG LLP or another firm of other independent certified public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial position and results of operations of the Borrower and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
(b) as soon as available, but in any event within fifty-five (55) days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (or, if earlier, the 10th day after such financial statements are required to be filed with the SEC), the unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries and related statements of operations and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial position and results of operations of the Borrower and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate executed by a Financial Officer of the Borrower certifying as to whether, to the knowledge of such Financial Officer after reasonable inquiry, a Default has occurred and is continuing and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto;
(d) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any failure to comply with Section 6.09 (which certificate may be limited to the extent required by accounting rules or guidelines or by such accounting firm’s professional standards and customs of the profession);
(e) promptly after the same become publicly available, copies of all annual, quarterly and current reports and proxy statements filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission; and
(f) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably acceptable request. Financial statements and other information required to be delivered pursuant to Sections 5.01(a), 5.01(b) and 5.01(e) shall be deemed to have been delivered if such statements and information shall have been posted by the Borrower on its website or shall have been posted on IntraLinks, SyndTrak or similar site to which all of the Lenders have been granted access or are publicly available on the SEC’s website pursuant to the XXXXX system. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, which report the Arrangers and opinion the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be prepared treated as set forth in accordance with GAAP Section 9.12); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and which (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not be subject to any Impermissible Qualification; provided thatmarked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC Borrower shall be deemed under no obligation to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;xxxx any Borrower Materials “PUBLIC.”
Appears in 2 contracts
Samples: Interim Loan Agreement (Constellation Brands, Inc.), Interim Loan Agreement (Constellation Brands, Inc.)
Financial Statements and Other Information. The Borrower will furnish to the Administrative AgentLenders:
(a) as soon as available and in any event within 30 45 days after the end of each month (including the last month first three fiscal quarters of each fiscal year (or 60 days, in the case of the fourth fiscal quarter), a the consolidated and consolidating balance sheet for Parent and its Subsidiaries sheets of the Obligors as of the end of such monthquarter, and the related consolidated and consolidating statements of income income, shareholders’ equity and cash flows of Borrower and its Subsidiaries for such month quarter and the portion of the fiscal year through the end of such monthquarter, prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries as at such date and the results of operations of Parent Borrower and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAPGAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of 180 days after the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding each fiscal year, together with a certificate the consolidated and consolidating balance sheets of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated and consolidating statements of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries for such fiscal year, prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP Ernst & Young, any other “Big Four” accounting firm, or another any other firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative AgentLenders, which report and opinion shall be prepared in accordance with GAAP generally accepted auditing standards and which shall not be subject to any Impermissible Qualification; provided that“going concern” or like qualification or exception as to the scope of such audit (other than a qualification resulting solely from the scheduled maturity of the Loans occurring within one year from the time such opinion is delivered), and in the case of such consolidating financial statements, certified by a Responsible Officer of Borrower;
(c) [Reserved]
(d) together with the financial statements for the fiscal years ending 2018 required pursuant to Sections 8.01(a) and 2019 may be subject to an Impermissible Qualification; provided further that(b), so long a compliance certificate of a Responsible Officer as Parent is subject to the public reporting requirements of the Exchange Actend of the applicable accounting period (which delivery may, Parent’s filing of an Annual Report on Form 10-K with the SEC unless a Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to satisfy be an original authentic CONFIDENTIAL TREATMENT REQUESTED UNDER C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.406. [****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION. counterpart thereof for all purposes) in the requirements form of this Exhibit E (a “Compliance Certificate”) including details of any issues that are material that are raised by auditors and, notice of any of the following occurring since the delivery of the last delivered Compliance Certificate (or the Closing Date, as appropriate): (i) the termination of any Material Agreement; (ii) the receipt by Borrower or any of its Subsidiaries of any material notice under any Material Agreement; (iii) the entering into of any new Material Agreement by an Obligor; or (iv) (but solely with respect to Compliance Certificates delivered together with the financial statements required under Section 8.01(c8.01(b)) any material amendment to a Material Agreement;
(e) promptly upon receipt thereof, copies of all letters of representation signed by an Obligor to its auditors and copies of all auditor reports delivered for each fiscal quarter;
(f) as soon as available, a consolidated financial forecast for Borrower and its Subsidiaries for the following five fiscal years, including forecasted consolidated balance sheets, consolidated statements of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries;
(g) promptly after the same are released, copies of all press releases;
(h) promptly, and in any event within five Business Days after receipt thereof by an Obligor thereof, copies of each notice or other correspondence received from any securities regulator or exchange to the authority of which Borrower may become subject from time to time concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of such Obligor; and
(i) the information regarding insurance maintained by Borrower and its Subsidiaries as required under Section 8.05.
(j) as soon as available and in any event within 45 days after the end of the first three fiscal quarters of each fiscal year (or 60 days, in the case of the fourth fiscal quarter), an updated Schedule 7.14 listing a complete and correct list of each Material Agreement and each agreement creating or evidencing any Material Indebtedness existing on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;thereof.
Appears in 2 contracts
Samples: Term Loan Agreement (Raindance Technologies Inc), Term Loan Agreement (Raindance Technologies Inc)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 30 ninety (90) days after the end of each month (including Fiscal Year, a copy of the last month of each fiscal quarter)annual audited report for such Fiscal Year for Holdings, the Borrower and its Restricted Subsidiaries, containing a consolidated balance sheet for Parent of Holdings, the Borrower and its Restricted Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of Holdings, the Borrower and its Restricted Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and reported on by Ernst & Young or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of such audit) to the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent Holdings, the Borrower and its Restricted Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards. It is understood and agreed that the requirements of this Section 5.1(a) (x) shall be satisfied by delivery of the applicable annual report on Form 10-K of Holdings to changes resulting from normal, year-end audit adjustments the Securities and except for Exchange Commission if delivered within the absence applicable time period noted herein and is available to the Lenders on XXXXX and (y) are effective as of notesthe Effective Date;
(b) as soon as available and in any event within forty-five (545) Business Days following days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each Fiscal Quarter of each Fiscal Year (other than the SEClast Fiscal Quarter), a an unaudited consolidated balance sheet for Parent of Holdings, the Borrower and its Restricted Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of Holdings, the Borrower and its Restricted Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in quarter and the preceding fiscal yearcorresponding portion of the previous Fiscal Year, together with a certificate of a Responsible Officer all certified by the chief financial officer, treasurer or controller of the Borrower stating that such financial statements as presenting fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent Holdings, the Borrower and its Restricted Subsidiaries for the period ended on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, normal year-end audit adjustments and except for the absence of notes; provided that, so long as Parent footnotes. It is subject to understood and agreed that the public reporting requirements of this Section 5.1(b) (x) shall be satisfied by delivery of the Exchange Act, Parent’s filing of a Quarterly Report applicable quarterly report on Form 10-Q of Holdings to the Securities and Exchange Commission if delivered within the applicable time period noted herein and is available to the Lenders on XXXXX and (y) are effective as of the Effective Date;
(c) concurrently with the SEC shall delivery of the financial statements referred to in Sections 5.1(a) and (b) above, a certificate of a Responsible Officer, (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with Article VI and (iii) stating whether any change in GAAP or the application thereof has occurred since the date of the Borrower’s audited financial statements referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) concurrently with the delivery of the financial statements referred to in Section 5.1(a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of their examination of such financial statements of any Default or Event of Default (which certificate may be deemed limited to satisfy the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the Securities and Exchange Commission, or with any national securities exchange, or distributed by Holdings to its shareholders generally, as the case may be, it being agreed that the requirements of this Section 8.01(b5.1(e) may be satisfied by the delivery of the applicable reports, statements or other materials to the Securities and Exchange Commission to the extent that such reports, statements or other materials are available to the Lenders on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretoXXXXX;
(cf) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of Holdings, the Borrower or any Restricted Subsidiary as the Administrative Agent or any Lender may reasonably request;
(g) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of 60 days after the end of such fiscal yeareach Fiscal Year, a forecasted income statement, balance sheet, and statement of cash flows for the related consolidated following Fiscal Year, in each case, on a quarter by quarter basis for such forecasted Fiscal Year information; and
(h) concurrently with the delivery of the financial statements referred to in Sections 5.1(a) and (b), for any period in which there exist any Unrestricted Subsidiaries, unaudited consolidating financial statements reflecting adjustments necessary to eliminate the accounts of incomeUnrestricted Subsidiaries (if any) from such financial statements delivered pursuant to Section 5.1(a) and (b), all in reasonable detail and certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower as fairly presenting in all material respects the financial condition, results of operations, shareholders’ equity and cash flows for such fiscal yearof Holdings, all in reasonable detail the Borrower and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared its Restricted Subsidiaries in accordance with GAAP GAAP, subject only to normal year-end audit adjustments and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements absence of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;footnotes.
Appears in 2 contracts
Samples: Credit Agreement (Aaron's Company, Inc.), Credit Agreement (Aaron's Company, Inc.)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative Agent:
(a) as soon as available and in any event within 30 seventy-five (75) days after the end of each month (including fiscal year of Borrower, a copy of the last month of each annual audited report for such fiscal quarter)year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, fiscal year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthyear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding previous fiscal year, together with all in reasonable detail and reported on by independent public accountants of nationally recognized standing (without a certificate of a Responsible Officer of “going concern” or like qualification or exception, and without any qualification or exception not acceptable to Lenders in their sole discretion) to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such fiscal year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five forty (540) Business Days following days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three (3) fiscal quarters of each fiscal year of the Borrower, a an unaudited consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, quarter and the related unaudited consolidated statements of income, shareholders’ equity income and cash flows of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of such fiscal year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of Borrower’s previous fiscal year, accompanied all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a report consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and opinion thereon the absence of RBSM LLP footnotes;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, (i) a certificate of a Responsible Officer, (A) certifying as to whether there exists a Default or another firm Event of independent certified public accountants Default on the date of recognized such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto and (B) stating whether any change in GAAP or the application thereof has occurred since the date of the Borrower’s audited financial statements referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such certificate, and (ii) a certificate of a Responsible Officer in the form of Exhibit 5.1(c) (the “Compliance Certificate”) setting forth in reasonable detail calculations demonstrating compliance with Article VI;
(d) promptly following any request therefor, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national standing securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(e) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the Borrower or any Subsidiary as the Administrative Agent or any Lender may reasonably acceptable request. Documents required to be delivered pursuant to Section 5.1(a) or (b) or Section 5.2(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed in Section 10.1; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 5.1(c) to the Administrative Agent. Except for such Compliance Certificates, which report the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and opinion in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be prepared solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the Issuing Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in accordance investment and other market-related activities with GAAP respect to such Persons’ securities. The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and which conspicuously marked “PUBLIC” which, at a minimum, shall not be subject to any Impermissible Qualificationmean that the word “PUBLIC” shall appear prominently on the first page thereof; provided that(x) by marking Borrower Materials “PUBLIC”, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC Borrower shall be deemed to satisfy have authorized the requirements Administrative Agent, the Arranger, the Issuing Bank and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of this United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 8.01(c10.11); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor”; and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Platform not designated “Public Investor”.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Watsco Inc), Revolving Credit Agreement (Watsco Inc)
Financial Statements and Other Information. The Borrower will furnish Deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 120 days after the end of each Fiscal Year (or, if earlier, 15 days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC)),
(i) for the Fiscal Year ending December 31, 2011, copies of the consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the three month period ending December 31, 2011 and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such three month period, all in reasonable detail, and audited and accompanied by a report and opinion of Ernst & Young, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of such audit) to the effect that such financial statements present fairly in all material respects the financial condition and the results of operations of the Borrower and its Subsidiaries for such three month period on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; and
(ii) commencing with the Fiscal Year ending December 31, 2012, copies of the consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year and, commencing with the Fiscal Year ending December 31, 2013, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail, and audited and accompanied by a report and opinion of Ernst & Table of Contents Young, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of such audit) to the effect that such financial statements present fairly in all material respects the financial condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 60 days after the end of each Fiscal Quarter (or, if earlier, 15 days after the date required to be filed with the SEC (without giving effect to any extension permitted by the SEC)), commencing with the Fiscal Quarter ending March 31, 2012, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year and commencing with the Fiscal Quarter ending December 31, 2012, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate, and if a Default or an Event of Default then exists, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, and (iii) stating whether any change in GAAP or the application thereof has occurred since December 31, 2011, and if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of their examination of such financial statements of any Default or Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, each Loan Party shall supplement Schedules 2, 3 and 4 of the Security Agreement so that as supplemented such schedules shall be true and correct;
(f) as soon as available and in any event within 30 days after the end of each month (including the last month of each fiscal quarter)Fiscal Year, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures pro forma budget for the corresponding period in the preceding fiscal yearsucceeding Fiscal Year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent containing an income statement and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notesbalance sheet;
(bg) as soon as available promptly after the same become publicly available, copies of all periodic and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q other reports, proxy statements and other materials filed with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarteror with any national securities exchange, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of or distributed by the Borrower stating that such financial statements fairly present in all material respects to its shareholders generally, as the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notescase may be; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;and
Appears in 2 contracts
Samples: Credit Agreement (Health Management Associates Inc), Credit Agreement (Health Management Associates Inc)
Financial Statements and Other Information. The Parent Borrower will furnish to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 30 90 days after the end of each month fiscal year of the Parent Borrower (including beginning with the last month of each fiscal quarteryear ending December 31, 2007), a its audited consolidated balance sheet for Parent and its Subsidiaries related statements of operations, stockholders’ equity and cash flows as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such monthyear, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth each case in comparative form the figures for the previous fiscal year, accompanied all reported on by a report and opinion thereon of RBSM PriceWaterhouseCoopers LLP or another firm of other independent certified public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Parent Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Parent Borrower, its unaudited consolidated balance sheet and related statements of earnings, stockholders’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Responsible Officers as presenting fairly in all material respects the financial condition and results of operations of the Parent Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a Compliance Certificate of a Responsible Officer of the Parent Borrower (i) certifying as to whether a Default or Event of Default has occurred and, if a Default or Event of Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably acceptable detailed calculations demonstrating compliance with Section 7.1 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.4 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under clause (a) above, a detailed consolidated budget for the current fiscal year, including a projected consolidated balance sheet of the Parent Borrower and its Subsidiaries as of the end of the current fiscal year, the related consolidated statements of projected cash flow, projected changes in financial position and projected income and a description of the underlying assumptions applicable thereto, (collectively, the “Budget”), which Budget shall in each case be accompanied by a certificate of a Responsible Officer stating that such Budget is based on assumptions believed reasonable by the management of the Parent Borrower at the time of delivery thereof; provided that the Parent Borrower shall not be required to deliver a Budget with respect to the fiscal year ending December 31, 2007;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials publicly filed by the Parent Borrower or any Subsidiary with the SEC, other applicable Canadian securities regulatory authorities or the CSA on the System for Electronic Document Analysis and Retrieval (SEDAR), or with any US, Canadian or other national securities exchange, or distributed by a Borrower to its shareholders generally, as the case may be; and
(f) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Parent Borrower or any Subsidiary, or in compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request, subject to Section 10.17. Information required to be delivered pursuant to paragraphs (a), (b) and (c) shall be deemed to have been delivered on the date on which the Parent Borrower provides notice to the Administrative Agent, which report or the Administrative Agent gives notice to the Lenders, as the case may be, that such information has been posted on the Parent Borrower’s website on the internet at the website address listed in such notice and opinion shall be prepared in accordance accessible by the Lenders without charge or on the IntraLinks website (with GAAP and which shall not be subject customary e-mail notification of any such posting to any Impermissible Qualificationthe IntraLinks website); provided that, that the Parent Borrower shall deliver paper copies of the reports and financial statements for the fiscal years ending 2018 referred to in paragraphs (a), (b) and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements (c) of this Section 8.01(c) on 6.1 to the date on which Administrative Agent or any Lender who requests the Parent Borrower to deliver such report paper copies until written notice to cease delivering paper copies is first available via given by the SEC’s XXXXX system Administrative Agent or a successor system related thereto;such Lender.
Appears in 2 contracts
Samples: Credit Agreement (Domtar CORP), Credit Agreement (Domtar CORP)
Financial Statements and Other Information. The Borrower Company will furnish deliver to the Administrative AgentAgent and each Lender:
(a) as As soon as available and in any event within 30 60 days after the end of each month (including of the last month first three Quarters of each fiscal quarter), a year of the Company: (A) consolidated balance sheet for Parent statements of operations of the Company and its Subsidiaries as consolidated Subsidiaries, taken together, and of the Company and the Restricted Subsidiaries, taken together, for such Quarter and for the period from the beginning of such fiscal year to the end of such month, Quarter and (B) the related consolidated balance sheets and consolidated cash flow statements of income the Company and cash flows for such month its consolidated Subsidiaries, taken together, and of the Company and the portion of the fiscal year through Restricted Subsidiaries, taken together, as at the end of such month, Quarter (which financial statements (other than statements of cash flows) shall set forth in comparative form the corresponding figures as at the end of and for the corresponding Quarter in the preceding fiscal year) all in reasonable detail and setting forth in comparative form the figures for the corresponding period accompanied by a certificate in the preceding fiscal year, together with a certificate form of Exhibit D-1 hereto of a Responsible Officer senior financial executive of the Borrower stating that Company certifying such financial statements as fairly present in all material respects presenting the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared respective entities covered thereby in accordance with GAAP, subject excluding accompanying footnotes to changes resulting from normalthe consolidated financial statements and subject, however, to year-end and audit adjustments adjustments, which certificate shall include a statement that the senior financial executive signing the same has no knowledge, except as specifically stated, that any Default has occurred and except for the absence of notes;is continuing.
(b) as As soon as available and in any event within five 120 days after the end of each fiscal year of the Company: (5A) Business Days following consolidated statements of operations of the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with Company and its consolidated Subsidiaries, taken together, and of the SECCompany and the Restricted Subsidiaries, a taken together, for such fiscal year and (B) the related consolidated balance sheet for Parent sheets and cash flow statements of the Company and its Subsidiaries consolidated Subsidiaries, taken together, and of the Company and the Restricted Subsidiaries, taken together, as of at the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through (which financial statements (other than cash flow statements) shall set forth in comparative form the corresponding figures as at the end of such quarterand for the preceding fiscal year), all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which accompanied by (x) an opinion of a Registered Public Accounting Firm of nationally recognized standing selected by the Company and reasonably acceptable to the Required Lenders as to said consolidated financial statements of the Company and its consolidated Subsidiaries and a certificate of such accountants stating that, in making the examination necessary for said opinion, they obtained no knowledge, except as specifically stated, of any failure by the Company or any Restricted Subsidiaries to perform or observe any of its covenants relating to financial matters in this Credit Agreement, (y) an attestation report of such Registered Public Accounting Firm as to the Company’s internal controls pursuant to Section 404 of Xxxxxxxx-Xxxxx, and (z) a certificate in the form of Exhibit D-2 hereto of a senior financial executive of the Company stating that such financial statements are correct and complete and fairly present the financial condition and results of operations of the respective entities covered thereby as at the end of and for such fiscal year and that the executive signing the same has no knowledge, except as specifically stated, that any Default has occurred and is continuing. Notwithstanding anything to the contrary herein, the Company shall not be subject required to deliver to the Administrative Agent, with respect to the fiscal year ending on December 31, 2005, (i) any Impermissible Qualification; cash flow statement of the Company and the Restricted Subsidiaries, taken together, for such fiscal year, provided thatthat the cash flow statement of the Company and the Restricted Subsidiaries, taken together, for the fiscal year ending on December 31, 2006 required to be delivered by the Company pursuant to this Section 7.01(b) shall set forth in comparative form the corresponding figures as at the end of and for the preceding fiscal year and (ii) the certificate from the accountants referred to in clause (x) above for such fiscal year.
(c) Promptly after their becoming available, copies of all financial statements and reports which the Parent Corp., the Company or any Restricted Subsidiary shall have sent its shareholders generally (other than tax returns unless specifically requested under Section 7.01(g)), copies of financial statements and reports which the Company shall have sent to the holders of any Permitted Debt or any Indebtedness specified in Schedule 7.12, to the extent such statements and reports contain information relating to the designation of the Company’s Subsidiaries as “restricted subsidiaries” under the Debt Instruments governing any such Indebtedness, and to the calculation of financial ratios thereunder and copies of all regular and periodic reports, if any, which the Parent Corp., the Company or any Restricted Subsidiary shall have filed with the SEC, or any governmental agency substituted therefor, or with any national securities exchange.
(d) Concurrently with the delivery of the financial statements referred to in Section 7.01(a) and (b), a Compliance Certificate, duly completed (including the subscriber information required to be set forth therein) signed by the chief executive officer, chief financial officer, treasurer or controller of the Company.
(e) Promptly, notice of the termination, cancellation, nonrenewal or other loss of any Franchise for a cable television system or systems that has had or is likely to have, either alone or in conjunction with all other such losses, a Materially Adverse Effect.
(f) As soon as possible and in any event within ten days after any senior executive of the fiscal years ending 2018 Company or any Restricted Subsidiary or of any general partner of any Restricted Subsidiary shall have obtained knowledge of the occurrence of a Default, a statement describing such Default and 2019 the action which is proposed to be taken with respect thereto.
(g) From time to time, with reasonable promptness, such further information regarding the business, affairs and financial condition of the Company or any of the Restricted Subsidiaries or any of their respective Affiliates or other affiliates as the Administrative Agent or any Lender, through the Administrative Agent, may reasonably request.
(h) Concurrently with the delivery of the financial statements referred to in Section 7.01(a) and (b), a list of any new, or redesignation with respect to, Restricted Subsidiaries and Unrestricted Subsidiaries.
(i) Prior to the making of any Special Dividend by the Company, a Solvency Certificate showing that, after giving effect to such Special Dividend, the Company is Solvent. Documents required to be delivered pursuant to Section 7.01(a), (b) or (c) (to the extent any such documents are included in materials otherwise filed with the SEC) may be subject to an Impermissible Qualification; provided further thatdelivered electronically and if so delivered, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such report documents are posted on the Company’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (A) the Company shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the Company shall notify the Administrative Agent, each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Company shall be required to provide paper copies of the Compliance Certificates required by Section 7.01(d) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Company hereby acknowledges that (a) the Administrative Agent and/or the Joint Lead Arrangers will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Company hereunder (collectively, “Company Materials”) by posting the Company Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Company or its securities) (each, a “Public Lender”). The Company hereby agrees that it will use commercially reasonable efforts to identify that portion of the Company Materials not otherwise publicly filed with the SEC that may be distributed to the Public Lenders and that (w) all such Company Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Company Materials “PUBLIC,” the Company shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the L/C Issuer and Lenders to treat such Company Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Company or its securities for purposes of United States Federal and state securities laws; (y) all Company Materials marked “PUBLIC” are permitted to be made available via through a portion of the SEC’s XXXXX system or Platform designated “Public Investor”; and (z) the Administrative Agent and the Joint Lead Arrangers shall be entitled to treat any Company Materials that are not marked “PUBLIC” as being suitable only for posting on a successor system related thereto;portion of the Platform not designated “Public Investor.”
Appears in 2 contracts
Samples: Amendment Agreement (CSC Holdings Inc), Credit Agreement (Cablevision Systems Corp /Ny)
Financial Statements and Other Information. (a) The Borrower will furnish shall supply to the Administrative AgentAgent in sufficient copies for all the Lenders:
(ai) as soon as available and in any event within 30 90 days after the end of each month (including Fiscal Year of the last month Parent Guarantor, a copy of each fiscal quarter)the annual audit report for such Fiscal Year for the Parent Guarantor and its Subsidiaries, containing a consolidated balance sheet for of the Parent Guarantor and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Parent Guarantor and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding fiscal yearprevious Fiscal Year (without qualification as to scope of audit or any going concern explanation or limitation), together with accompanied by a certificate of a Responsible Officer of from the Borrower Parent Guarantor’s certified public accountant stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of the Parent Guarantor and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(bii) as soon as available and in any event within five (5) Business Days following 45 days after the date on which end of each Fiscal Quarter of the Parent files or is required to file a Quarterly Report on Form 10-Q with the SECGuarantor, a an unaudited consolidated balance sheet for of the Parent Guarantor and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Parent Guarantor and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in quarter and the preceding fiscal year, together with a certificate of a Responsible Officer corresponding portion of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, ParentGuarantor’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretoprevious Fiscal Year;
(ciii) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of 90 days after the end of each Fiscal Year of the Borrower, an unaudited balance sheet of the Borrower for such fiscal year, Fiscal Year and the related consolidated unaudited statements of income, shareholders’ equity and cash flows income of the Borrower for such fiscal yearFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the previous fiscal yearFiscal Year;
(iv) as soon as available and in any event within 45 days after the end of each Fiscal Quarter of the Borrower, accompanied by a report an unaudited balance sheet of the Borrower as of the end of such Fiscal Quarter and opinion thereon the related unaudited consolidated statements of RBSM LLP or another firm income of independent certified public accountants the Borrower for such Fiscal Quarter and the then elapsed portion of recognized national standing reasonably acceptable to such Fiscal Year, setting forth in each case in comparative form the Administrative Agent, which report figures for the corresponding quarter and opinion shall be prepared in accordance the corresponding portion of the Borrower’s previous Fiscal Year;
(b) concurrently with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the delivery of the financial statements for referred to in clauses (i) and (ii) above, a Compliance Certificate signed by the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long chief financial officer or treasurer or controller of the Parent Guarantor (i) certifying as Parent is subject to the public reporting requirements accuracy of the Exchange Actsuch financial statements, Parent’s filing (ii) certifying as to whether there exists a Default or Event of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) Default on the date of such certificate, and if a Default or an Event of Default exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, and (iii) stating whether any change in the application of GAAP has occurred since the date of such the Parent Guarantor’s audited financial statements delivered in connection with the closing of this Agreement and, if any change has occurred, specifying the effect of such change on which the financial statements accompanying such report is first available via certificate; and
(c) promptly following any reasonable request therefor, such other information regarding the SEC’s XXXXX system results of operations, business affairs and financial condition of the Borrower as the Agent or any Lender may reasonably request and any information required by a successor system related thereto;Lender in respect of its “know your customer” requirements.
Appears in 2 contracts
Samples: Facility Agreement (Bristow Group Inc.), Facility Agreement (Bristow Group Inc.)
Financial Statements and Other Information. The Borrower will furnish Each of the Parent and the Obligor shall deliver or cause to be delivered to the Administrative Agent:
(a) as soon as available and in any event within 30 120 days after the end of each month the Fiscal Year of theBuffalo Parent, (including the last month of each fiscal quarter), i) a consolidated balance sheet for of theBuffalo Parent and its the Subsidiaries as of the end of such month, Fiscal Year and the related (ii) consolidated statements of income income, changes in members’ equity and cash flows of theBuffalo Parent and the Subsidiaries for such month Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion thereon of independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit (other than any qualification or exception attributable solely to the occurrence of the stated maturity of any Loanloan within 12 months after the date of such opinion)), which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and that such audit provides a reasonable basis for such opinion in the circumstances; provided, that if, at any time, Buffalo Parent (I) ceases to directly and beneficially own 100% on a fully diluted basis of the economic and voting interests in the Equity Interests in the Parent, or (II) engages in any business or activity, or owns any assets, other than owning 100% of the economic and voting interests in the Equity Interests in the Parent and activities and assets incidental or related thereto, the financial statements required to be delivered pursuant to this Section 5.04(a) shall be the financial statements of the Parent and the Subsidiaries.
(b) within 60 days after the end of each of the first three Fiscal QuarterQuarters of each Fiscal Year of the Buffalo Parent, (i) a consolidated balance sheet of the Buffalo Parent and the Subsidiaries as of the end of such Fiscal Quarter and (ii) consolidated statements of income, changes in shareholders’ equity and cash flows of the Buffalo Parent and the Subsidiaries, for such Fiscal Quarter and (in the case of the second, and third and fourth Fiscal Quarters) for the portion of the fiscal year through the end of Fiscal Year ending with such monthFiscal Quarter, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period periods in the preceding fiscal yearprevious Fiscal Year, together all in reasonable detail, prepared in accordance with a certificate of GAAP applicable to quarterly financial statements generally, and certified by a Responsible Officer of the Borrower stating that such financial statements Buffalo Parent as fairly present presenting, in all material respects respects, the financial condition position of Parent the companies being reported on and its Subsidiaries as at such date and the their results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAPcash flows, subject to changes resulting from normal, year-end audit adjustments adjustments;(c) concurrently with each delivery of provided, that if, at any time, Buffalo Parent (I) ceases to directly and except for beneficially own 100% on a fully diluted basis of the absence economic and voting interests in the Equity Interests in the Parent, or (II) engages in any business or activity, or owns any assets, other than owning 100% of notesthe economic and voting interests in the Equity Interests in the Parent and activities and assets incidental or related thereto, the financial statements described in clauses (a) and (b) above, a report in form and method of analysis similar to a “Management’s Discussion and Analysis” in form and substance reasonably satisfactory to the Administrative Agent (covering such topics as the Parent and the Subsidiaries’ financial condition and results of operations andrequired to be delivered pursuant to this Section 5.04(b) shall be the financial statements of the Parent and the Subsidiaries’ businesses).
(c) [reserved];
(d) concurrently with each delivery of the financial statements described in clauses (a) and (b) as soon as available above, if there are any Unrestricted Subsidiaries during the period covered by such financial statements, the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of the Unrestricted Subsidiaries (which may be in footnote form only) from such consolidated financial statements;
(e) concurrently with each delivery of the financial statements described in clause (a) above, a Perfection Certificate Supplement in accordance with Section 4.01(b) of the Security Agreement; and
(f) promptly upon receipt thereof by the Obligor or any Affiliate of the Obligor in connection with (i) any HFOTCO Credit Document or (ii) any indenture or other agreement or instrument evidencing Material Indebtedness, one copy of each notice of any default or event of default thereunder; and(g) promptly, and in any event within five (5) Business Days following no later than 30 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with beginning of each Fiscal Year of the SECParent, a consolidated balance sheet budget and business plan for the Parent and its the Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter Fiscal Year and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows updated Base Case Projections for such fiscal yearFiscal Year, all in reasonable detail and setting forth each case, in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable satisfactory to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;.
Appears in 2 contracts
Samples: Continuing Covenant Agreement, Continuing Covenant Agreement (SemGroup Corp)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent:Agent (for delivery to each Lender):
(a) as soon as available and required under the Exchange Act but in any event within 30 ninety (90) days after the end of each month (including the last month Fiscal Year of each fiscal quarter)Holdings, a its audited consolidated balance sheet for Parent and its Subsidiaries related consolidated statements of operations, stockholders’ equity and cash flows as of the end of and for such monthFiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all reported on by independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP, accompanied by any management letter prepared by said accountants, and its unaudited consolidating balance sheet and related unaudited consolidating statement of operations for such Fiscal Year; provided that if Holdings has filed with the SEC its annual financial statements for the respective Fiscal Year and same contain a footnote complying with the requirements of subsection (c)(4) of Rule 3-10 of Regulation S-X under the Securities Act, such annual financial statements shall be deemed to meet the requirement that the Borrower provide consolidating financial statements as otherwise required above for the respective Fiscal Year;
(b) as soon as required under the Exchange Act but in any event within forty-five (45) days after the end of each of the first three Fiscal Quarters of each Fiscal Year of Holdings, its consolidated balance sheet and related consolidated statements of income operations, stockholders’ equity and cash flows as of the end of and for such month Fiscal Quarter and the then-elapsed portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the preceding fiscal yearcase of the balance sheet, together as of the end of) the previous Fiscal Year, and its consolidating balance sheet and related consolidating statement of operations for such period; provided that if Holdings has filed with the SEC its quarterly financial statements for the respective Fiscal Quarter and same contain a footnote complying with the requirements of subsection (c)(4) of Rule 3-10 of Regulation S-X under the Securities Act, such quarterly financial statements shall be deemed to meet the requirement that the Borrower provide consolidating financial statements as otherwise required above for the respective Fiscal Quarter;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a compliance certificate of a Responsible Financial Officer of the Borrower stating that such in substantially the form of Exhibit J (i) certifying, on behalf of the Borrower, in the case of the financial statements delivered under clause (a) or (b), as presenting fairly present in all material respects as of the date of each such statement the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent Holdings and its consolidated Subsidiaries for the period ended on such date a consolidated and have been prepared consolidating basis in accordance with GAAP, subject subject, in the case of financial statements delivered pursuant to changes resulting from normalclause (b), to normal year-end audit adjustments and except for the absence of notesfootnotes, (ii) certifying as to whether a Default or Event of Default has occurred and is continuing and, to the knowledge of such Financial Officer after due inquiry, whether any Default or Even of Default has occurred during the respective Fiscal Quarter or Fiscal Year and, if a Default or Event of Default has occurred during the respective Fiscal Quarter or Fiscal Year or is then continuing, in each case specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (iii) certifying as to whether any material change in GAAP or in the application thereof (to the extent such change is applicable to Holdings and its consolidated Subsidiaries) has occurred since the date of the audited financial statements referred to in Section 9.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate which certificate shall (i) set forth in reasonable detail the calculations required to establish whether Holdings and its Subsidiaries were in compliance with the provisions of Sections 11.03(iii)(4), 11.04(viii), 11.06(xiv), 11.10, 11.11 and 11.12 at the end of such Fiscal Quarter or Fiscal Year, as the case may be, (ii) if delivered with the financial statements required by Section 10.01(a), set forth in reasonable detail the amount of (and the calculations required to establish the amount of) Excess Cash Flow for the respective Excess Cash Payment Period and the amount of any required payment under Section 5.02(e) in respect of such Excess Cash Payment Period and a calculation in reasonable detail of the Cumulative Retained Excess Cash Flow Amount (showing in reasonable detail the sources and uses thereof) and (iii) certify that there have been no changes to the information in Schedules 3.03 (Pledged Securities), 4.02(b) (Grantor Legal Name), 4.02(c) (Merger and Acquisitions), 4.02(d) (Grantor Organizational Information), 4.02(e) (Collateral Address), 4.02(j) (Intellectual Property), 4.06(a) (Deposit Accounts) or 4.06(b) (Securities Accounts) of the Guaranty and Collateral Agreement since the Initial Borrowing Date or, if later, since the date of the most recent certificate delivered pursuant to this Section 10.01(c), or if there have been any such changes, a list in reasonable detail of such changes (but, in each case with respect to this clause (iii), only to the extent that such changes in information are required to be reported to the Collateral Agent pursuant to the terms of such Security Documents) and whether Holdings and the other Credit Parties have otherwise taken all actions required to be taken by them pursuant to such Security Documents in connections with any such changes;
(bd) concurrently with any delivery of financial statements under clause (a) above, a certificate or other written statement of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default or Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) as soon as available and available, but in any event within five not more than ninety (590) Business Days following days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SECend of each Fiscal Year of Holdings, a copy of the plan and forecast (including a projected consolidated balance sheet for Parent sheet, income statement and cash flow statement) of Holdings and its Subsidiaries as of the end for each month of such quarter, and Fiscal Year (the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year“Projections”), together with a certificate summary of a Responsible Officer assumptions underlying such forecast, in form reasonably satisfactory to the Administrative Agent;
(f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the Borrower stating that functions of said Commission, or with any national securities exchange, or distributed by Holdings to its public securities holders generally, as the case may be;
(g) promptly following any request therefor, such financial statements fairly present in all material respects other information regarding the operations, business affairs and financial condition of Parent any Credit Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent may reasonably request; and
(h) promptly following the reasonable request from the Administrative Agent, any documentation and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject other information required to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject be delivered pursuant to the public reporting requirements of the Exchange ActSection 6.08. Documents required to be delivered pursuant to Section 10.01 and Section 10.02 may be delivered electronically and if so delivered, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) have been delivered on the date on which such report is first documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another website identified in the notice provided pursuant to the next succeeding paragraph of this Section 10.01, if any, to which each Lender and the Administrative Agent have been granted access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that (x) upon written request by the Administrative Agent or any Lender, the Borrower shall deliver paper copies of such information to the Administrative Agent or such Lender (as applicable) and (y) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Lead Arrangers will make available via to the SEC’s XXXXX Lenders materials and/or information provided by or on behalf of Holdings and/or the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Holdings or a successor system related thereto;
any of its Subsidiaries or their securities) (c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SECeach, a consolidated balance sheet for Parent and its Subsidiaries as “Public Lender”). The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the end of Borrower Materials that may be distributed to the Public Lenders and that the Borrower will use commercially reasonable efforts to (w) clearly and conspicuously xxxx all such fiscal yearBorrower Materials “PUBLIC” which, and at a minimum, shall mean that the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form word “PUBLIC” shall appear prominently on the figures for first page thereof; (x) by marking Borrower Materials “PUBLIC,” the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable Borrower shall be deemed to have authorized the Administrative Agent, which report the Lead Arrangers and opinion the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States federal and state securities laws (provided, however, that the Borrower Materials shall be prepared in accordance with GAAP and which shall not be subject to Section 14.16, to the extent applicable; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor”; and (z) the Administrative Agent and the Lead Arrangers shall be entitled to treat any Impermissible Qualification; provided thatBorrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.” At the request of the Administrative Agent or either Lead Arranger, the financial statements for the fiscal years ending 2018 and 2019 Borrower shall promptly review any Borrower Materials as may be subject requested in order to an Impermissible Qualification; determine whether same may be marked “PUBLIC” and made available to Public Lenders as provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;above.
Appears in 2 contracts
Samples: Credit Agreement (CF Industries Holdings, Inc.), Credit Agreement (CF Industries Holdings, Inc.)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent:Agent (for delivery to each Lender):
(a) as soon as available and required under the Exchange Act but in any event within 30 ninety (90) days after the end of each month (including the last month Fiscal Year of each fiscal quarter)Holdings, a its audited consolidated balance sheet for Parent and its Subsidiaries related consolidated statements of operations, stockholders’ equity and cash flows as of the end of and for such monthFiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all reported on by independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP, accompanied by any management letter prepared by said accountants, and its unaudited consolidating balance sheet and related unaudited consolidating statement of operations for such Fiscal Year; provided that if Holdings has filed with the SEC its annual financial statements for the respective Fiscal Year and same contain a footnote complying with the requirements of subsection (c)(4) of Rule 3-10 of Regulation S-X under the Securities Act, such annual financial statements shall be deemed to meet the requirement that the Borrower provide consolidating financial statements as otherwise required above for the respective Fiscal Year;
(b) as soon as required under the Exchange Act but in any event within forty-five (45) days after the end of each of the first three Fiscal Quarters of each Fiscal Year of Holdings, its consolidated balance sheet and related consolidated statements of income operations, stockholders’ equity and cash flows as of the end of and for such month Fiscal Quarter and the then-elapsed portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the preceding fiscal yearcase of the balance sheet, together as of the end of) the previous Fiscal Year, and its consolidating balance sheet and related consolidating statement of operations for such period; provided that if Holdings has filed with the SEC its quarterly financial statements for the respective Fiscal Quarter and same contain a footnote complying with the requirements of subsection (c)(4) of Rule 3-10 of Regulation S-X under the Securities Act, such quarterly financial statements shall be deemed to meet the requirement that the Borrower provide consolidating financial statements as otherwise required above for the respective Fiscal Quarter;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a compliance certificate of a Responsible Financial Officer of the Borrower stating that such in substantially the form of Exhibit J (i) certifying, on behalf of the Borrower, in the case of the financial statements delivered under clause (a) or (b), as presenting fairly present in all material respects as of the date of each such statement the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent Holdings and its consolidated Subsidiaries for the period ended on such date a consolidated and have been prepared consolidating basis in accordance with GAAP, subject subject, in the case of financial statements delivered pursuant to changes resulting from normalclause (b), to normal year-end audit adjustments and except for the absence of notesfootnotes, (ii) certifying as to whether a Default or Event of Default has occurred and is continuing and, to the knowledge of such Financial Officer after due inquiry, whether any Default or Even of Default has occurred during the respective Fiscal Quarter or Fiscal Year and, if a Default or Event of Default has occurred during the respective Fiscal Quarter or Fiscal Year or is then continuing, in each case specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (iii) certifying as to whether any material change in GAAP or in the application thereof (to the extent such change is applicable to Holdings and its consolidated Subsidiaries) has occurred since the date of the audited financial statements referred to in Section 9.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate which certificate shall (i) set forth in reasonable detail the calculations required to establish whether Holdings and its Subsidiaries were in compliance with the provisions of Sections 11.03(iii)(4), 11.04(viii), 11.06(xiv), 11.10, 11.11 and 11.12 at the end of such Fiscal Quarter or Fiscal Year, as the case may be, (ii) if delivered with the financial statements required by Section 10.01(a), set forth in reasonable detail the amount of (and the calculations required to establish the amount of) Excess Cash Flow for the respective Excess Cash Payment Period and the amount of any required payment under Section 5.02(e) of the First Lien Credit Agreement in respect of such Excess Cash Payment Period and a calculation in reasonable detail of the Cumulative Retained Excess Cash Flow Amount (showing in reasonable detail the sources and uses thereof) and (iii) certify that there have been no changes to the information in Schedules 3.03 (Pledged Securities), 4.02(b) (Grantor Legal Name), 4.02(c) (Merger and Acquisitions), 4.02(d) (Grantor Organizational Information), 4.02(e) (Collateral Address), 4.02(j) (Intellectual Property), 4.06(a) (Deposit Accounts) or 4.06(b) (Securities Accounts) of the Guaranty and Collateral Agreement since the Initial Borrowing Date or, if later, since the date of the most recent certificate delivered pursuant to this Section 10.01(c), or if there have been any such changes, a list in reasonable detail of such changes (but, in each case with respect to this clause (iii), only to the extent that such changes in information are required to be reported to the Collateral Agent pursuant to the terms of such Security Documents) and whether Holdings and the other Credit Parties have otherwise taken all actions required to be taken by them pursuant to such Security Documents in connections with any such changes;
(bd) concurrently with any delivery of financial statements under clause (a) above, a certificate or other written statement of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default or Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) as soon as available and available, but in any event within five not more than ninety (590) Business Days following days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SECend of each Fiscal Year of Holdings, a copy of the plan and forecast (including a projected consolidated balance sheet for Parent sheet, income statement and cash flow statement) of Holdings and its Subsidiaries as of the end for each month of such quarter, and Fiscal Year (the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year“Projections”), together with a certificate summary of a Responsible Officer assumptions underlying such forecast, in form reasonably satisfactory to the Administrative Agent;
(f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the Borrower stating that functions of said Commission, or with any national securities exchange, or distributed by Holdings to its public securities holders generally, as the case may be;
(g) promptly following any request therefor, such financial statements fairly present in all material respects other information regarding the operations, business affairs and financial condition of Parent any Credit Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent may reasonably request; and
(h) promptly following the reasonable request from the Administrative Agent, any documentation and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject other information required to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject be delivered pursuant to the public reporting requirements of the Exchange ActSection 6.08. Documents required to be delivered pursuant to Section 10.01 and Section 10.02 may be delivered electronically and if so delivered, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) have been delivered on the date on which such report is first documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another website identified in the notice provided pursuant to the next succeeding paragraph of this Section 10.01, if any, to which each Lender and the Administrative Agent have been granted access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that (x) upon written request by the Administrative Agent or any Lender, the Borrower shall deliver paper copies of such information to the Administrative Agent or such Lender (as applicable) and (y) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Lead Arranger will make available via to the SEC’s XXXXX Lenders materials and/or information provided by or on behalf of Holdings and/or the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Holdings or a successor system related thereto;
any of its Subsidiaries or their securities) (c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SECeach, a consolidated balance sheet for Parent and its Subsidiaries as “Public Lender”). The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the end of Borrower Materials that may be distributed to the Public Lenders and that the Borrower will use commercially reasonable efforts to (w) clearly and conspicuously xxxx all such fiscal yearBorrower Materials “PUBLIC” which, and at a minimum, shall mean that the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form word “PUBLIC” shall appear prominently on the figures for first page thereof; (x) by marking Borrower Materials “PUBLIC,” the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable Borrower shall be deemed to have authorized the Administrative Agent, which report the Lead Arranger and opinion the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States federal and state securities laws (provided, however, that the Borrower Materials shall be prepared in accordance with GAAP and which shall not be subject to Section 14.16, to the extent applicable; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor”; and (z) the Administrative Agent and the Lead Arranger shall be entitled to treat any Impermissible Qualification; provided thatBorrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.” At the request of the Administrative Agent or the Lead Arranger, the financial statements for the fiscal years ending 2018 and 2019 Borrower shall promptly review any Borrower Materials as may be subject requested in order to an Impermissible Qualification; determine whether same may be marked “PUBLIC” and made available to Public Lenders as provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;above.
Appears in 2 contracts
Samples: Bridge Loan Agreement (CF Industries Holdings, Inc.), Bridge Loan Agreement (CF Industries Holdings, Inc.)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 30 90 days after the end of each month (including fiscal year of Borrower, a copy of the last month of each annual audited report for such fiscal quarter)year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, fiscal year and the related consolidated statements of income operations, changes in shareholders' equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthyear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding previous fiscal year, together with all in reasonable detail and reported on by independent public accountants of nationally recognized standing (without a certificate "going concern" or like qualification and without any qualification as to scope of a Responsible Officer of such audit) to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such fiscal year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five (5) Business Days following 45 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three fiscal quarters of each fiscal year of the Borrower, a an unaudited condensed consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, quarter and the related unaudited consolidated statements of income, shareholders’ equity operations and cash flows flow of the Borrower and its Subsidiaries, in the case of such consolidated statement of operations, for such fiscal quarter and the then elapsed portion of such fiscal year and, in the case of such statement of cash flow, only for the then elapsed portion of such fiscal year, all in reasonable detail and setting forth in each case, as applicable, in comparative form the figures for the corresponding quarter and the corresponding portion of Borrower's previous fiscal year, accompanied all certified by the chief financial officer or controller of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared consolidated basis in accordance with GAAP and which shall not be GAAP, subject to any Impermissible Qualification; provided that, normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements for the fiscal years ending 2018 referred to in clauses (a) and 2019 may be subject (b) above, a certificate of a Responsible Officer, (i) certifying as to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements whether there exists a Default or Event of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with Article VI in the form of Exhibit 5.1(c) hereto and (iii) stating whether any change in GAAP or the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) concurrently with the delivery of the financial statements referred to in clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of their examination of such financial statements of any Default or Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(f) promptly following any request therefor, such report is first available via other information regarding the SEC’s XXXXX system results of operations, business affairs and financial condition of the Borrower or a successor system related thereto;any Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The In the case of the Borrower, the Borrower will furnish to the Administrative Agent, which shall furnish to each Lender, the following:
(a) as soon as available and in any event within 30 90 days after the end of each month (including the last month of each fiscal quarter), a consolidated balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that (or such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries later date as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K of the Borrower is required to be filed with the SEC taking into account any extension granted by the SEC, a provided that the Borrower gives the Administrative Agent notice of any such extension), its audited consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related audited consolidated statements of incomeoperations, shareholders’ equity and cash flows as of the end of and for such fiscal year, all in reasonable detail and related notes thereto, setting forth in each case in comparative form the figures for the previous fiscal year, accompanied prepared in accordance with generally accepted auditing standards and reported on by a report and opinion thereon of RBSM PricewaterhouseCoopers LLP or another firm of other independent certified public accountants of recognized national standing reasonably acceptable (without a “going concern” or like qualification, exception or statement and without any qualification or exception as to the scope of such audit other than with respect to the Borrower’ internal controls over financial reporting for which an opinion as to effectiveness is not required) to the effect that such financial statements present fairly in all material respects the financial condition, results of operations and cash flow of the Borrower and its Subsidiaries on a consolidated basis as of the end of and for such fiscal year and accompanied by a narrative report describing the financial position, results of operations and cash flow of the Borrower and its consolidated Subsidiaries;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (or such later date as Form 10-Q of the Borrower is required to be filed with the SEC taking into account any extension granted by the SEC, provided that the Borrower gives the Administrative AgentAgent notice of any such extension), which report its unaudited consolidated balance sheet and opinion shall be prepared unaudited consolidated statements of operations and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer of the Borrower as presenting fairly in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries on a consolidated basis as of the end of and for such fiscal quarter and such portion of the fiscal year in accordance with GAAP and which shall not be consistently applied, subject to any Impermissible Qualification; provided thatnormal year-end audit adjustments and the absence of footnotes, and accompanied by a narrative report describing the financial position, results of operations and cash flow of the Borrower and its consolidated Subsidiaries;
(c) concurrently with each delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (which, for the avoidance of doubt, shall be prepared based on the terms hereof after giving effect to the Second Restatement Effective Date commencing with the certificate delivered concurrently with the financial statements for the fiscal years quarter ending 2018 September 30, 2015) (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and 2019 may any action taken or proposed to be subject taken with respect thereto, (ii) setting forth reasonably detailed calculations (A) demonstrating compliance with the covenants contained in Sections 6.12 and 6.13 and (B) in the case of financial statements delivered under clause (a) above, beginning with the financial statements for the fiscal year of the Borrower ending December 31, 2015, of Excess Cash Flow, (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the prior certificate delivered pursuant to this clause (c) indicating such a change and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate and (iv) at any time when there is any Unrestricted Subsidiary, including as an Impermissible Qualificationattachment with respect to each such financial statement, an Unrestricted Subsidiary Reconciliation Statement (except to the extent that the information required thereby is separately provided with the public filing of such financial statement);
(d) [reserved;]
(e) concurrently with any delivery of financial statements under clause (a) above, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and consolidated statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(f) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(g) promptly after the same becomes publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Borrower or any Restricted Subsidiary with the SEC or with any national securities exchange, or distributed by the Borrower to the holders of its Equity Interests generally, as applicable; provided further thatand
(h) promptly following any request therefor, so long as Parent is but subject to the public reporting requirements limitations set forth in the proviso to the last sentence of Section 5.09 and Section 9.12, such other information regarding the Exchange Actoperations, Parent’s filing business affairs, assets, liabilities (including contingent liabilities) and financial condition of an Annual Report on Form 10-K any Borrower or any Restricted Subsidiary, or compliance with the SEC terms of this Agreement or any other Loan Document, as the Administrative Agent, any Issuing Bank or any Lender may reasonably request. Information required to be furnished pursuant to clause (a), (b) or (g) of this Section shall be deemed to satisfy have been furnished if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the requirements Administrative Agent on the Platform or shall be available on the website of the SEC at xxxx://xxx.xxx.xxx. Information required to be furnished pursuant to this Section 8.01(c) on may also be furnished by electronic communications pursuant to procedures approved by the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Allegion PLC)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent:Agent (who shall promptly furnish a copy to each Lender):
(a) as soon as available and available, but in any event within 30 one hundred (100) days after the end of each month fiscal year of the Borrower (including or, if earlier, the last month of each fiscal quarter10th day after such financial statements are required to be filed with the SEC), a the audited consolidated balance sheet for Parent of the Borrower and its Consolidated Subsidiaries and related statements of operations, stockholders’ equity and cash flows as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such monthyear, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth each case in comparative form the figures for the previous fiscal year, accompanied all reported on by a report and opinion thereon of RBSM KPMG LLP or another firm of other independent certified public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial position and results of operations of the Borrower and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
(b) as soon as available, but in any event within fifty-five (55) days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (or, if earlier, the 10th day after such financial statements are required to be filed with the SEC), the unaudited consolidated balance sheet of the Borrower and its Consolidated Subsidiaries and related statements of operations and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial position and results of operations of the Borrower and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate executed by a Financial Officer of the Borrower certifying as to whether, to the knowledge of such Financial Officer after reasonable inquiry, a Default has occurred and is continuing and, if so, specifying the details thereof and any action taken or proposed to be taken with respect thereto;
(d) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any failure to comply with Section 6.09 (which certificate may be limited to the extent required by accounting rules or guidelines or by such accounting firm’s professional standards and customs of the profession);
(e) promptly after the same become publicly available, copies of all annual, quarterly and current reports and proxy statements filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission;
(f) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably acceptable request; and
(g) not later than 75 days after the Closing Date, all financial statements and pro forma financial information with respect to the Acquisition required by Item 9.01 of Form 8-K. Financial statements and other information required to be delivered pursuant to Sections 5.01(a), 5.01(b), 5.01(e) and 5.01(g) shall be deemed to have been delivered if such statements and information shall have been posted by the Borrower on its website or shall have been posted on IntraLinks, SyndTrak or similar site to which all of the Lenders have been granted access or are publicly available on the SEC’s website pursuant to the XXXXX system. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, which report the Arrangers and opinion the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be prepared treated as set forth in accordance with GAAP Section 9.12); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and which (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not be subject to any Impermissible Qualification; provided thatmarked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC Borrower shall be deemed under no obligation to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Interim Loan Agreement (Constellation Brands, Inc.)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent:
(a) Borrowers shall, and shall cause any Subsidiary to, keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Collateral and the business of Borrowers and their Subsidiaries in accordance with GAAP. Borrowers shall promptly furnish to Lender any financial or and all other information as soon as available Lender may reasonably request relating to the Collateral and in any event the assets, business and operations of Borrowers, and to notify the auditors and accountants of Borrowers that Lender is authorized to obtain such information directly from them. Without limiting the foregoing, Borrowers shall furnish or cause to be furnished to Lender, the following: (i) within 30 forty-five (45) days after the end of each month of the first three (3) fiscal quarters in each fiscal year and within ninety (90) days after the end of the fourth fiscal quarter in each fiscal year, quarterly unaudited consolidated financial statements (including balance sheets, statements of income and loss, statements of cash flow, and statements of shareholders' equity), and unaudited consolidating financial statements (including balance sheets and statements of income and loss), all in reasonable detail, fairly presenting the last month financial position and the results of each the operations of Borrowers and their Subsidiaries as of the end of and through such fiscal quarter), certified to be correct by the chief financial officer of Parent, subject to normal year-end adjustments and accompanied by a consolidated balance sheet for Parent and its Subsidiaries compliance certificate substantially in the form of Exhibit B hereto, along with a schedule in form reasonably satisfactory to Lender during any Availability Compliance Period (related to an Availability Triggering Event) of the calculations used in determining, as of the end of such month, whether Borrowers were in compliance with the covenant set forth in Sections 9.18 of this Agreement for such quarter, (ii) during any Availability Compliance Period (related to an Availability Triggering Event), on the last Business Day of any month therein and at any other date as determined by Borrowers in their sole discretion, Borrowers will deliver to Lender an Availability Compliance Report, along with a schedule in form and substance reasonably satisfactory to Lender, of the related calculations used in determining, as of the end of such month and such other date determined by Borrowers in their sole discretion, whether Borrowers' Excess Availability plus the amount, converted to Dollars, resulting from the corresponding calculation under the Canadian Facility is equal to at least Twenty Million Dollars ($20,000,000), and (iii) within ninety (90) days after the end of each fiscal year, audited consolidated financial statements (including balance sheets, statements of income and loss, statements of cash flows for such month flow and statements of shareholders' equity) and unaudited consolidating financial statements of Borrowers and its Subsidiaries (including balance sheets and statements of income and loss), and the portion of the fiscal year through the end of such monthaccompanying notes thereto, all in reasonable detail detail, fairly presenting the financial position and setting forth in comparative form the figures results of the operations of Borrowers and their Subsidiaries as of the end of and for the corresponding period in the preceding such fiscal year, together with a certificate the unqualified opinion of a Responsible Officer of the Borrower stating independent certified public accountants, which accountants shall be an independent accounting firm selected by Borrowers and reasonably acceptable to Lender, that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for present fairly the absence results of notes;
(b) as soon as available operations and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent financial condition of Borrowers and its their Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through then ended.
(b) Borrowers shall promptly notify Lender in writing of the end details of (i) any material loss, damage, investigation, action, suit, proceeding or claim relating to the Collateral or any other property which is security for the Obligations or which would result in any Material Adverse Change, (ii) any Material Contract of any Borrower being terminated or amended or any new Material Contract being entered into (in which event Borrowers shall provide Lender with a copy of such quarterMaterial Contract), all (iii) any order, judgment or decree in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal yearexcess of One Million Dollars ($1,000,000) having been entered against any Borrower or any of its properties or assets, together with a certificate of a Responsible Officer (iv) any notification of the Borrower stating that such financial statements fairly present in all material respects violation of any law or regulation received by any Borrower, (v) any ERISA Event, and (vi) the financial condition occurrence of Parent and its Subsidiaries as at such date and the results any Default or Event of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Default.
(c) as soon as available Borrowers shall promptly after the sending or filing thereof furnish or cause to be furnished to Lender copies of all reports which any Borrower sends to its stockholders generally and in copies of all reports and registration statements which any event within five (5) Business Days following the date on which Parent Borrower files or is required to file its Annual Report on Form 10-K with the SECSecurities and Exchange Commission, a consolidated balance sheet for Parent any national securities exchange or the National Association of Securities Dealers, Inc.
(d) Borrowers shall furnish or cause to be furnished to Lender such budgets, forecasts, projections and its Subsidiaries as other information in respect of the end of such fiscal year, Collateral and the related consolidated statements business of incomeBorrowers, shareholders’ equity and cash flows for such fiscal yearas Lender may, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal yearfrom time to time, accompanied by reasonably request. Lender is hereby authorized to deliver a report and opinion thereon copy of RBSM LLP any financial statement or another firm of independent certified public accountants of recognized national standing reasonably acceptable any other information relating to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject business of Borrowers to any Impermissible Qualification; provided thatcourt or other Governmental Authority or to any participant or assignee or prospective participant or assignee. Borrowers hereby irrevocably authorize and direct all accountants or auditors to deliver to Lender, at Borrowers' expense, copies of the financial statements for of Borrowers and any reports or management letters prepared by such accountants or auditors on behalf of Borrowers and to disclose to Lender such information as they may have regarding the fiscal years ending 2018 and 2019 business of Borrowers. Any documents, schedules, invoices or other papers delivered to Lender may be subject destroyed or otherwise disposed of by Lender one (1) year after the same are delivered to an Impermissible Qualification; provided further thatLender, so long except as Parent is subject otherwise designated by Borrowers to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K Lender in writing.
(e) Concurrently with the SEC quarterly financial statements required under Section 9.6(a)(ii), Borrowers shall furnish or cause to be deemed furnished to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Lender individual store summary profit and loss statements.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative Agent:
(a) as soon as available and in any event within 30 90 days after the end of each month Fiscal Year of the Borrower (including or if the last month Borrower is no longer required to file periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, then 120 days after the end of each fiscal quarterFiscal Year) (commencing with the Fiscal Year ending December 31, 2019), a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and reported on by Deloitte & Touche, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the preceding fiscal year, together with a certificate scope of a Responsible Officer such audit (other than any “going concern” or similar qualification or exception related to the maturity or refinancing of the Borrower stating Obligations)) to the effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five 45 days after the end of each of the first three Fiscal Quarters of the Borrower (5) Business Days following or if the date on which Parent files or Borrower is no longer required to file a Quarterly Report on Form 10-Q periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, then 60 days after the end of each Fiscal Quarter) (commencing with the SECFiscal Quarter ending September 30, a 2019), an unaudited consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section, a Compliance Certificate signed by the preceding fiscal year, together with a certificate of a Responsible Officer principal executive officer or the principal financial officer of the Borrower stating (i) certifying that such financial statements fairly present in all material respects the financial condition condition, results of Parent operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared a consolidated basis in accordance with GAAP, in the case of quarterly financial statements subject only to changes resulting from normal, normal year-end audit adjustments and except for the absence of notes; provided thatfootnotes, so long (ii) certifying as Parent is subject to the public reporting requirements whether there exists a Default or Event of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) Default on the date of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (iii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI (beginning with the Fiscal Quarter ended September 30, 2019), (iv) specifying any change in the identity of the Borrower or any of its Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Borrower or any of its Subsidiaries identified to the Lenders on which the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, (v) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such report change on the financial statements accompanying such Compliance Certificate, (vi) setting forth a list of all Subsidiaries of the Borrower (other than Excluded Subsidiaries and Specified Subsidiaries) that are not Subsidiary Loan Parties as of such date and setting forth in reasonable detail calculations of total assets of such Subsidiaries as of such date (and the percentage obtained by dividing such total assets by the total assets of the Borrower and its Subsidiaries (other than Excluded Subsidiaries) as of such date) and the total revenue of such Subsidiaries for the Test Period then ended (and the percentage obtained by dividing such total revenue by the total revenue of the Borrower and its Subsidiaries (other than Excluded Subsidiaries) for the Test Period then ended)and (vii) setting forth a list of all Excluded Subsidiaries as of such date and setting forth in reasonable detail calculations of (x) Indebtedness of such Excluded Subsidiaries incurred pursuant to Section 7.1(h) that remains outstanding as of such date, (y) the total amount of Investments made in Excluded Subsidiaries pursuant to Section 7.4(h) as of such date and (z) that portion of Consolidated EBITDA that is first available via attributable to such Excluded Subsidiaries (and their respective Subsidiaries) with respect to the SEC’s XXXXX system applicable Fiscal Year or a successor system related theretoFiscal Quarter end;
(cd) as soon as available and in any event within five 60 days after the end of the calendar year, a budget for the succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow;
(5e) Business Days promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(f) promptly following any request therefor, such other information regarding the date on which Parent files results of operations, business affairs and financial condition of the Borrower or any of its Subsidiaries (including information and documentation for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and the Beneficial Ownership Regulation) as the Administrative Agent may reasonably request (provided that no such information shall be required to be provided if providing such information would violate confidentiality agreements or result in a loss of attorney-client privilege or a claim of attorney work product with respect to such information so long as the Borrower notifies the Administrative Agent that such information is being withheld and the reason therefor). So long as the Borrower is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP periodic reports under Section 13(a) or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements Section 15(d) of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC Borrower shall be deemed to satisfy have satisfied its obligation to deliver the requirements financial statements referred to in clauses (a), (b) and (e) upon the filing of this Section 8.01(c) on such reports with the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Securities and Exchange Commission.
Appears in 1 contract
Financial Statements and Other Information. The Borrower ------------------------------------------ will furnish deliver to the Administrative AgentLender:
(a) as soon as available and in any event within 30 90 days after the end of each month (including fiscal year of Borrower, a copy of the last month of each annual audited report for such fiscal quarter)year for the Borrower, the Parent Corporation and its Subsidiaries, containing a consolidated balance sheet for of the Borrower, the Parent Corporation and its Subsidiaries as of the end of such month, fiscal year and the related consolidated statements of income income, stockholders' equity and cash flows (together with all footnotes thereto) of the Borrower, the Parent Corporation and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthyear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding previous fiscal year, together with all in reasonable detail and reported on by Xxxxxx Xxxxxxxx LLC or other independent public accountants of nationally recognized standing (without a certificate "going concern" or like qualification, exception or explanation and without any qualification or exception as to scope of a Responsible Officer of such audit) to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of the Borrower, the Parent Corporation and its Subsidiaries for the period ended such fiscal year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five (5) Business Days following 45 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three fiscal quarters of each fiscal year of the Borrower, a an unaudited consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarterBorrower, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent Corporation and its Subsidiaries as of the end of such fiscal year, quarter and the related unaudited consolidated statements of income, shareholders’ equity income and cash flows of the Borrower, the Parent Corporation and its Subsidiaries for such fiscal quarter and the then elapsed portion of such fiscal year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of Borrower's previous fiscal year, accompanied all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower, the Parent Corporation and its Subsidiaries on a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared consolidated basis in accordance with GAAP and which shall not be GAAP, subject to any Impermissible Qualification; provided that, normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements for the fiscal years ending 2018 referred to in clauses (a) and 2019 may be subject (b) above, a certificate of a Responsible Officer, (i) certifying as to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements whether there exists a Default or Event of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, and (ii) setting forth in reasonable detail calculations demonstrating compliance with Article VI;
(d) concurrently with the delivery of the financial statements referred to in clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of their examination of such financial statements of any Default or Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Parent Corporation to its shareholders generally, as the case may be; and
(f) promptly following any request therefor, such report is first available via other information regarding the SEC’s XXXXX system results of operations, business affairs and financial condition of the Borrower, the Parent Corporation or a successor system related thereto;any Subsidiary as the Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative Agent:Agent (who will deliver to each Lender):
(a) as soon as available and in any event within 30 90 days after the end of each month (including Fiscal Year of the last month Borrower, a copy of each fiscal quarter)the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in previous Fiscal Year, and reported on by independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the preceding fiscal year, together with scope of such audit (except any such qualification arising as a certificate of a Responsible Officer result of the Borrower stating impending Maturity Date (as a result of clause (i) of such definition) or Revolving Commitment Termination Date (as a result of clause (i) of such definition)) to the effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, GAAP (as in effect at the time such financial statements were prepared and subject to changes resulting from normal, year-end audit adjustments Section 1.3) consistently applied (except as expressly noted therein) and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five 45 days after the end of each Fiscal Quarter of the Borrower (5) Business Days following other than the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEClast Fiscal Quarter in each Fiscal Year), a an unaudited consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year and the corresponding figures for the Profit Plan for the current Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in the preceding fiscal yearsubsections (a) and (b) of this Section, together with a certificate of a Compliance Certificate signed by an appropriate Responsible Officer of the Borrower (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action, if any, which the Borrower has taken or proposes to take with respect thereto, (ii) if applicable, setting forth in reasonable detail calculations demonstrating compliance with the financial covenant set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the most recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (a) above, a certificate of the accounting firm that reported on such financial statements fairly present (which may be included in all material respects the opinion or other reports delivered by such accounting firm pursuant to subsection (a)) stating that, in making the examination necessary to prepare such financial condition statements, no knowledge was actually obtained of Parent the occurrence and its Subsidiaries continuance of any Default or Event of Default, except as at specified in such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and certificate (it being understood that no special or separate inquiry or review will have been prepared in accordance made or shall be required to be made with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject respect to the existence of any Default or Event of Default and that such certificate shall be limited to the items that independent certified public reporting requirements accountants are permitted to cover in such certificates pursuant to their professional standards and customs of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretoprofession);
(ce) as soon as available and in any event within five 90 days after the commencement of any Fiscal Year, a Profit Plan for such Fiscal Year;
(5f) Business Days promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(g) promptly following any request therefor, such other information regarding the date on which Parent files results of operations, business affairs and financial condition of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request. So long as the Borrower is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP periodic reports under Section 13(a) or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements Section 15(d) of the Exchange Act, Parentthe Borrower may satisfy its obligation to deliver the financial statements referred to in clauses (a) and (b) above by delivering the Borrower’s filing of an Annual Report on Form 10-K or 10-Q filed with the SEC shall be deemed to satisfy Securities and Exchange Commission within the requirements of this Section 8.01(capplicable time periods set forth in clauses (a) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;and (b), as applicable.
Appears in 1 contract
Samples: Credit Agreement (BioScrip, Inc.)
Financial Statements and Other Information. The REIT Guarantor and the Borrower will furnish deliver to the Administrative AgentAgent (for distribution to each Lender) prompt written notice of the following:
(a) as soon as available not later than ten (10) days following the filing of the REIT Guarantor’s Form 10-K with the Securities and Exchange Commission, and in any event within 30 ninety (90) days after the end of each month (including Fiscal Year of the last month REIT Guarantor, a copy of each fiscal quarter)the annual audited report for such Fiscal Year for the REIT Guarantor and its Subsidiaries, containing a consolidated balance sheet for Parent of the REIT Guarantor and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the REIT Guarantor and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and reported on by independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the preceding fiscal year, together with a certificate scope of a Responsible Officer such audit (other than any “going concern” or similar qualification or exception related to the maturity of the Borrower stating Obligations, the Senior Notes, the GE Mortgage Indebtedness or any other Indebtedness not prohibited hereunder)) to the effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the REIT Guarantor and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five not later than ten (510) Business Days days following the date on which Parent files or is required to file a Quarterly Report on filing of the REIT Guarantor’s Form 10-Q with the SECSecurities and Exchange Commission, a and in any event within sixty (60) days after the end of each Fiscal Quarter of each of the first three (3) Fiscal Quarters of each Fiscal Year of the REIT Guarantor (or if the REIT Guarantor is not required to file periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, then sixty (60) days after the end of each of the first three (3) Fiscal Quarters in each Fiscal Year), an unaudited consolidated balance sheet for Parent of the REIT Guarantor and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income of the REIT Guarantor and cash flows its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of the REIT Guarantor’s previous Fiscal Year;
(c) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year of the REIT Guarantor and no later than ninety (90) days after the end of the fourth (4th) Fiscal Quarter of each Fiscal Year of the REIT Guarantor, (i) a schedule setting forth, for the four (4) Fiscal Quarter period ending on the last date of such Fiscal Quarter, (A) the aggregate Adjusted NOI for all Real Property Assets that are Borrowing Base Assets for each category of facilities set forth in the preceding fiscal yeardefinition of Capitalization Rate; (B) the aggregate Net Revenues for all Real Property Assets that are Borrowing Base Assets for each category of facilities set forth in the definition of Capitalization Rate; (C) the Adjusted NOI for each Real Property Asset that is a Borrowing Base Asset; and (D) the Net Revenues with respect to each Borrowing Base Asset; and (ii) the amount of the annual rent payable by each Eligible Tenant with respect to each Borrowing Base Asset (other than any Multi-Tenant Buildings and Subsidiary Operated Facilities (with such Adjusted NOI, together such Net Revenues and such rent payments to be determined in a manner consistent with Adjusted NOI, Net Revenues and rent payments set forth in the Borrowing Base Deliverables with respect to the applicable Borrowing Base Asset);
(d) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section, a certificate of a Responsible Officer Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower stating (i) certifying that such financial statements fairly present in all material respects the financial condition condition, results of Parent operations, shareholders’ equity and cash flows of REIT Guarantor and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared a consolidated basis in accordance with GAAP, in the case of quarterly financial statements subject only to changes resulting from normal, normal year-end audit adjustments and except for the absence of notes; provided thatfootnotes, so long (ii) certifying as Parent is subject to the public reporting requirements whether there exists a Default or Event of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) Default on the date on of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action which such report the Borrower has taken or proposes to take with respect thereto, (iii) setting forth in reasonable detail calculations demonstrating whether the Borrower is in compliance with the financial covenants set forth in Article VI [(beginning with the first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days full Fiscal Quarter following the date on which Parent files or is required to file its Annual Report on Form 10-K with Closing Date)], (iv) specifying any change in the SEC, a consolidated balance sheet for Parent and its identity of the Subsidiaries as of the end of such fiscal Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (v) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the REIT Guarantor and its Subsidiaries that impacts such financial statements, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(e) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section, (i) a Borrowing Base Certificate calculated as of the end of the immediately prior Fiscal Quarter, duly completed and executed by a Responsible Officer of the Borrower or the REIT Guarantor; provided, however, the Borrower may, at its option, provide an updated Borrowing Base Certificate more frequently than quarterly; and (ii) a Rent Coverage Ratio calculation concerning each of the Borrowing Base Assets with respect to which Ensign is the Eligible Tenant under the applicable Borrowing Base Lease;
(f) within sixty (60) days after the end of the calendar year, (i) a budget for REIT Guarantor and its Subsidiaries for the related consolidated statements succeeding Fiscal Year, containing a projected income statement, balance sheet and statement of income, shareholders’ equity and cash flows and (ii) a projected operating statement for each Real Property Asset that is a Borrowing Base Asset;
(g) [Reserved];
(h) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the REIT Guarantor or the Borrower to its equityholders generally, as the case may be;
(i) promptly following any reasonable request therefor, such fiscal year, all in reasonable detail and setting forth in comparative form other information with respect to the figures for Real Property Assets and/or the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP Borrowing Base Assets as the Administrative Agent or another firm of independent certified public accountants of recognized national standing reasonably acceptable to any Lender through the Administrative Agent, which report may reasonably request and opinion as is reasonably available to the REIT Guarantor or any of its Subsidiaries (provided that no such information shall be prepared required to be provided if providing such information would violate confidentiality agreements or result in accordance a loss of attorney-client privilege or a claim of attorney work product with GAAP and which shall not be subject respect to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, such information so long as Parent the REIT Guarantor notifies the Administrative Agent that such information is subject being withheld and the reason therefor); and
(j) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the REIT Guarantor or any of its Subsidiaries as the Administrative Agent may reasonably request (provided that no such information shall be required to be provided if providing such information would violate confidentiality agreements or result in a loss of attorney-client privilege or a claim of attorney work product with respect to such information so long as the public reporting requirements REIT Guarantor notifies the Administrative Agent that such information is being withheld and the reason therefor). So long as the REIT Guarantor is required to file periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC Borrower shall be deemed to satisfy have satisfied its obligation to deliver the requirements financial statements referred to in clauses (a), (b) and (h) upon the filing of this Section 8.01(c) on such reports with the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Securities and Exchange Commission.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (CareTrust REIT, Inc.)
Financial Statements and Other Information. The In the case of the Borrower, the Borrower will furnish to the Administrative Agent, which shall furnish to each Lender, the following:
(a) as soon as available and in any event within 30 90 days after the end of each month (including the last month of each fiscal quarter), a consolidated balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that (or such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries later date as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K of the Borrower is required to be filed with the SEC taking into account any extension granted by the SEC, a provided that the Borrower gives the Administrative Agent notice of any such extension), its audited consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related audited consolidated statements of incomeoperations, shareholders’ equity and cash flows as of the end of and for such fiscal year, all in reasonable detail and related notes thereto, setting forth in each case in comparative form the figures for the previous fiscal year, accompanied prepared in accordance with generally accepted auditing standards and reported on by a report and opinion thereon of RBSM PricewaterhouseCoopers LLP or another firm of other independent certified public accountants of recognized national standing reasonably acceptable (without a “going concern” or like qualification, exception or statement and without any qualification or exception as to the scope of such audit other than with respect to the Borrower’ internal controls over financial reporting for which an opinion as to effectiveness is not required) to the effect that such financial statements present fairly in all material respects the financial condition, results of operations and cash flow of the Borrower and its Subsidiaries on a consolidated basis as of the end of and for such fiscal year and accompanied by a narrative report describing the financial position, results of operations and cash flow of the Borrower and its consolidated Subsidiaries;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (or such later date as Form 10-Q of the Borrower is required to be filed with the SEC taking into account any extension granted by the SEC, provided that the Borrower gives the Administrative AgentAgent notice of any such extension), which report its unaudited consolidated balance sheet and opinion shall be prepared unaudited consolidated statements of operations and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer of the Borrower as presenting fairly in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries on a consolidated basis as of the end of and for such fiscal quarter and such portion of the fiscal year in accordance with GAAP and which shall not be consistently applied, subject to any Impermissible Qualification; provided thatnormal year-end audit adjustments and the absence of footnotes, and accompanied by a narrative report describing the financial position, results of operations and cash flow of the Borrower and its consolidated Subsidiaries;
(c) concurrently with each delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer of the Borrower (which, for the avoidance of doubt, shall be prepared based on the terms hereof after giving effect to the First Restatement Effective Date commencing with the certificate delivered concurrently with the financial statements for the fiscal years quarter ending 2018 September 30, 2014)
(i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and 2019 may any action taken or proposed to be subject taken with respect thereto, (ii) setting forth reasonably detailed calculations (A) demonstrating compliance with the covenants contained in Sections 6.12 and 6.13 and (B) in the case of financial statements delivered under clause (a) above, beginning with the financial statements for the fiscal year of the Borrower ending December 31, 2015, of Excess Cash Flow, (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the prior certificate delivered pursuant to this clause (c) indicating such a change and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate and (iv) at any time when there is any Unrestricted Subsidiary, including as an Impermissible Qualificationattachment with respect to each such financial statement, an Unrestricted Subsidiary Reconciliation Statement (except to the extent that the information required thereby is separately provided with the public filing of such financial statement);
(d) [reserved;]
(e) concurrently with any delivery of financial statements under clause (a) above, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and consolidated statements of projected operations and cash flows as of the end of and for such fiscal year and setting forth the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(f) promptly after the request by any Lender, all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(g) promptly after the same becomes publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any Borrower or any Restricted Subsidiary with the SEC or with any national securities exchange, or distributed by the Borrower to the holders of its Equity Interests generally, as applicable; provided further thatand
(h) promptly following any request therefor, so long as Parent is but subject to the public reporting requirements limitations set forth in the proviso to the last sentence of Section 5.09 and Section 9.12, such other information regarding the Exchange Actoperations, Parent’s filing business affairs, assets, liabilities (including contingent liabilities) and financial condition of an Annual Report on Form 10-K any Borrower or any Restricted Subsidiary, or compliance with the SEC terms of this Agreement or any other Loan Document, as the Administrative Agent, any Issuing Bank or any Lender may reasonably request. Information required to be furnished pursuant to clause (a), (b) or (g) of this Section shall be deemed to satisfy have been furnished if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the requirements Administrative Agent on the Platform or shall be available on the website of the SEC at xxxx://xxx.xxx.xxx. Information required to be furnished pursuant to this Section 8.01(c) on may also be furnished by electronic communications pursuant to procedures approved by the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Allegion PLC)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 30 90 days after the end of each month (including Fiscal Year of the last month Borrower, commencing with the Fiscal Year ending December 31, 2018, a copy of each fiscal quarter)the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and reported on by Ernst & Young or other independent public accountants of nationally recognized standing or other independent public accountants otherwise acceptable in the preceding fiscal year, together with a certificate of a Responsible Officer reasonable discretion of the Borrower stating Administrative Agent (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexami- nation by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five (5) Business Days following 45 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q end of each of the first three Fiscal Quarters of the Borrower, commencing with the SECFiscal Quarter ending September 30, a 2018, an unaudited consolidated and consolidating balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of such Fiscal Year, and, beginning with the fiscal year through fifth full Fiscal Quarter ending after the end of such quarterClosing Date, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in Fiscal Quarter and the preceding fiscal year, together with a certificate of a Responsible Officer corresponding portion of the Borrower stating that such financial statements fairly present Borrower’s previous Fiscal Year and including management discussion and analysis of operating results inclusive of operating metrics in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretocomparative form;
(c) [reserved];
(d) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section, a Compliance Certificate signed by the principal executive officer, the principal financial officer or the treasurer of the Borrower (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(e) [reserved];
(f) as soon as available and in any event within five 45 days after the end of the calendar year, forecasts and a pro forma budget for the succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow;
(5g) Business Days following promptly after the date on which Parent files or is required to file its Annual Report on Form 10-K same become publicly available, if applicable, copies of all periodic and other reports, proxy statements and other materials filed with the SECSecurities and Exchange Commission, a consolidated balance sheet for Parent or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the Borrower or any of its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to Agent or any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 Lender may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (RadNet, Inc.)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative Senior Facility Agent:
(a) as soon as available and in any event within 30 Within sixty (60) days after the end of each month (including of the last month first three Fiscal Quarters of each fiscal quarter)Fiscal Year, a commencing with the Fiscal Quarter ending June 30, 2023, the Borrower shall furnish or cause to be furnished to the Senior Facility Agent the consolidated unaudited balance sheet for Parent and its Subsidiaries sheets of the Borrower as of at the end of such month, Fiscal Quarter and the related consolidated statements of income and cash flows of the Borrower for such month Fiscal Quarter and for the portion period from the beginning of the fiscal year through then current Fiscal Year to the end of such monthFiscal Quarter, in each case, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;detail.
(b) as soon as available Within one hundred and in any event within five twenty (5120) Business Days following days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q end of each Fiscal Year, commencing with the SECFiscal Year ending December 31, 2023, the Borrower shall furnish or cause to be furnished to the Senior Facility Agent (i) a consolidated balance sheet for Parent and its Subsidiaries of the Borrower as of at the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, Fiscal Year and the related consolidated statements of income, shareholdersstockholders’ equity and cash flows of the Borrower for such fiscal yearFiscal Year, setting forth in each case in comparative form the corresponding figures for the previous Fiscal Year, all in reasonable detail detail; and setting forth in comparative form the figures for the previous fiscal year, accompanied by (ii) with respect to such consolidated financial statements a report and opinion thereon of RBSM LLP or another firm of an independent certified public accountants of recognized national standing reasonably acceptable (which report and/or the accompanying financial statements shall be unqualified as to scope of audit or any going concern (other than (x) resulting from the impending maturity of any Indebtedness or (y) resulting from any actual or prospective breach of any financial covenant (if any) applicable to the Administrative AgentLoan Parties)).
(c) Together with each delivery of financial statements of the Borrower pursuant to Section 5.01(a) and Section 5.01(b), which report a duly executed and opinion shall be prepared in accordance completed Compliance Certificate from an Authorized Officer of the Borrower certifying only as to the following (i) no Default or Event of Default then exists (or, if any Default or Event of Default does exist, what curative action the Borrower is taking or proposes to take with GAAP respect thereto) and which shall not be subject to any Impermissible Qualification; provided that, (ii) the financial statements delivered in connection with the Compliance Certificate fairly present, in all material respects, the consolidated financial condition of the Borrower as at the dates indicated and the results of its operations and its cash flows for the fiscal years ending 2018 periods indicated, subject to, in the case of any unaudited financial statements, changes resulting from audit and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject normal year-end adjustments.
(d) The Borrower will deliver to the public reporting requirements Senior Facility Agent, promptly, and in any event within ten (10) Business Days of an Authorized Officer becoming aware of any Event of Default, an Authorized Officer’s certificate specifying such Event of Default and what curative action the Borrower is taking or proposes to take with respect thereto.
(e) The Borrower will deliver to the Senior Facility Agent, promptly, and in any event within ten (10) Business Days of any Authorized Officer becoming aware of any event that would be reasonably expected to have a Material Adverse Effect.
(f) Promptly, and in any event no later than ten (10) Business Days after becoming aware of the Exchange Actoccurrence of or forthcoming occurrence of any ERISA Event that would reasonably be expected to have a Material Adverse Effect, Parent’s filing the Borrower will deliver a written notice specifying the nature thereof, what action Borrower, any of an Annual Report on Form 10-K its Subsidiary Guarantors or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the SEC IRS, the Department of Labor or the PBGC with respect thereto. Any information required to be delivered pursuant to this Section 5.01 shall be deemed to satisfy have been delivered to the requirements of this Section 8.01(cSenior Facility Agent on the date that such information has been posted (and is publicly available) on the date Borrower’s (or its direct or indirect parent’s) website on the Internet (which such report website is first available via located as of the SEC’s XXXXX system Closing Date at xxx.xxxxxxxx.xxx) or a on the SEC website accessible through xxxx://xxx.xxx.xxx/xxxxx (or any successor system related webpage of the SEC thereto;). Notwithstanding the foregoing, the Borrower may redact or otherwise omit commercially sensitive information and no Loan Party shall be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Senior Facility Agent or any Lender (or their respective representatives or contractors) is prohibited by any law or any binding agreement, or (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product.
Appears in 1 contract
Samples: Senior Revolving Credit and Guaranty Agreement (Sabine Pass Liquefaction, LLC)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentLender:
(a) as soon as available and in any event within 30 120 days after the end of each month fiscal year of Borrower, (including i) a copy of the last month of each annual audited report for such fiscal quarter)year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, fiscal year and the related consolidated statements of income income, stockholders' equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthyear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding previous fiscal year, together with all in reasonable detail and reported on by Xxxxxxx Xxxxx & Co. LLP or other independent certified public accountants of nationally recognized standing chosen by Borrower and acceptable to the Lender, (without a certificate "going concern" or like qualification, exception or explanation and without any qualification or exception as to scope of a Responsible Officer of such audit) to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such fiscal year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards and (ii) annual unaudited consolidating balance sheets and income statements for the absence of notesBorrower and its Subsidiaries;
(b) as soon as available and in any event within five 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, (5i) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a an unaudited consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal yearquarter with comparative information for the previous year end, and (ii) the related unaudited consolidated statements of income, shareholders’ equity income of the Borrower and cash flows its Subsidiaries for such fiscal quarter and the then elapsed portion of such fiscal year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of Borrower's previous fiscal year, accompanied and (iii) consolidated statements of cash flow for the then elapsed portion of such fiscal year with comparative information for the corresponding portion of the previous fiscal year, all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared consolidated basis in accordance with GAAP and which shall not be GAAP, subject to any Impermissible Qualification; provided that, normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements for the fiscal years ending 2018 or information referred to in clauses (a) and 2019 may be subject to an Impermissible Qualification; provided further that(b) above, so long as Parent is subject (i) a certificate of a Responsible Officer, (1) certifying, to the public reporting requirements best of the Exchange Acthis actual knowledge, Parent’s filing as to whether there exists a Default or Event of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto and (2) stating whether any change in GAAP or the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on which the financial statements accompanying such report is first available via certificate and (ii) a Covenant Compliance Certificate;
(d) promptly after the SEC’s XXXXX system same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or a successor system related thereto;any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(e) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the Borrower or any Subsidiary as the Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Patriot Transportation Holding Inc)
Financial Statements and Other Information. The Borrower will furnish to the First Lien Administrative Agent:
, on behalf of each Lender: (a) as soon as available and in any event within 30 (a)commencing with the financial statements for the fiscal year ended December 31, 2021, on or before the date that is ninety (90) days after the end of each month (including fiscal year of the last month of each fiscal quarter)Borrower, a audited consolidated balance sheet for Parent and audited consolidated statements of operations and comprehensive income, shareholders’ equity and cash flows of Holdings and its Subsidiaries as of the end of and for such monthyear, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such monthnotes thereto, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth each case in comparative form the figures for the previous fiscal year, accompanied all reported on by a report and opinion thereon of RBSM LLP or another firm of an independent certified public accountants accountant of recognized national standing reasonably acceptable (without a “going concern” or like qualification or exception and without any qualification or exception as to the Administrative Agentscope of such audit (other than any exception or explanatory paragraph, which report but not a qualification, that is expressly and solely with respect to, or expressly and solely resulting from, (A) the Term Maturity Date or the Revolving Maturity Date occurring within one year from the time such opinion shall be prepared is delivered or (B) any actual failure to satisfy the Financial Performance Covenant or potential inability to satisfy the Financial Performance Covenant on a future date or in a future period)) to the effect that such consolidated financial statements present fairly in all material respects the financial condition as of the end of and for such year and results of operations and cash flows of the BorrowerHoldings and its Subsidiaries on a consolidated basis in accordance with GAAP and which shall not be subject to any Impermissible Qualificationconsistently applied; provided that, (b) (b)commencing with the financial statements for the fiscal years ending 2018 quarter ended June 30, 2021, on or before the date that is forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, unaudited consolidated balance sheet and 2019 may be unaudited consolidated statements of operations and comprehensive income, shareholders’ equity and cash flows of Holdings and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer as presenting fairly in all material respects the financial condition as of the end of and for such fiscal quarter and such portion of the fiscal year and results of operations and cash flows of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to an Impermissible Qualificationnormal year-end audit adjustments and the absence of footnotes; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;(c)
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentLender:
(a) as soon as available and in any event within 30 90 days after the end of each month (including the last month fiscal year of each fiscal quarter)Borrower, a copy of the annual audited report for such fiscal year for the Borrower and its Subsidiaries, containing (i) a consolidated and consolidating balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated and consolidating statements of income, of changes in shareholders’ equity and of cash flows (together with all footnotes thereto), and (ii) a condensed balance sheet of the Borrower only and the related condensed statements of income and of cash flows for such month and the portion of the fiscal year through the end of such monthflows, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding previous fiscal year, together with all in reasonable detail and reported on by Cherry, Bekaert & Holland, L.L.P. or other independent public accountants of nationally recognized standing (without a certificate “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of a Responsible Officer of such audit) to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations and cash flows on a consolidated and consolidating basis of Parent and its Subsidiaries the Borrower for the period ended on such date and have been prepared fiscal year in accordance with GAAPGAAP and that the examination by such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards; provided, subject that the requirements set forth in this clause (a), other than the certification of the Borrower’s certified public accountants set forth in clause (ii) above, may be fulfilled by providing to changes resulting from normal, yearthe Lender the report of the Borrower to the SEC on Form 10-end audit adjustments and except K for the absence of notesapplicable fiscal year;
(b) as soon as available and in any event within five (5) Business Days following 45 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three fiscal quarters of each fiscal year of the Borrower, a consolidated an unaudited balance sheet for Parent of the Borrower and its Subsidiaries on a consolidated basis as of the end of such quarter, fiscal quarter and the related consolidated unaudited statements of income and cash flows of the Borrower and its Subsidiaries on a consolidated basis, each for such fiscal quarter and the then elapsed portion of the such fiscal year through the end of such quarteryear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in quarter and the preceding corresponding portion of Borrower’s previous fiscal year, together with a certificate of a Responsible Officer all certified by the chief financial officer or treasurer of the Borrower stating that such financial statements as presenting fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, normal year-end audit adjustments and except for the absence of notesfootnotes; provided thatprovided, so long as Parent is subject that the requirements set forth in this clause (b) with respect to the public reporting requirements financial information of the Exchange Act, Parent’s filing Borrower and its Subsidiaries on a consolidated and consolidating basis may be fulfilled by providing to the Lender the report of a Quarterly Report the Borrower to the SEC on Form 10-Q with for the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretoapplicable fiscal quarter;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a Compliance Certificate, (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, and (ii) setting forth in reasonable detail calculations demonstrating compliance with Article VI;
(d) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, duly executed copies of the Borrower’s then-current FR Y-9C Report and FR Y-9LP Report and a duly executed copy of the then-current Call Report for each Financial Institution Subsidiary and each such report so filed by the Borrower or the Financial Institution Subsidiaries with any Governmental Authority shall be true and correct and is in accordance with the respective books of account and records of the Borrower and the Financial Institution Subsidiaries, and will be prepared in accordance with applicable banking regulations, rules and guidelines on a basis consistent with prior periods, and fairly and accurately presents, in all material respects, the financial condition of the Borrower and the Financial Institution Subsidiaries and their respective assets and liabilities and the results of their respective operations as of such date;
(e) as soon as available and in any event within five 60 days after the first day of each fiscal year of the Borrower, (5i) Business Days following a budget prepared on a consolidated and quarterly basis in reasonable detail (including budgeted income statements, statements of cash flow and balance sheets and the date on principal assumptions upon which Parent files such budgets are based) prepared by the Borrower for such fiscal year and (ii) projected consolidated and consolidating financial statements (including in each case, forecasted balance sheets and statements of income and statements of cash flow) for each fiscal quarter in such fiscal year, in each case, in form and content reasonably acceptable to the Lender, together with such supporting information as the Lender may reasonably request;
(f) promptly after the same become publicly available, copies of all periodic and other reports, financial statements, registration statements, proxy statements and other materials, together with any amendments or is required exhibits relating to file its Annual Report on Form 10-K any of the foregoing, filed with the SEC, or any Governmental Authority succeeding to any or all functions of the SEC, or with any national securities exchange, or distributed by the Borrower to its public security holders generally, as the case may be (to the extent not otherwise required to be delivered to the Lender hereunder);
(g) promptly after receiving knowledge thereof, written notice of all material charges, material assessments, actions, suits and proceedings (as well as notice of the outcome of any such charges, assessments, orders, actions, suits and proceedings) that are proposed or initiated by, or brought before, any court or Governmental Authority, in connection with the Borrower or any of the Financial Institution Subsidiaries, other than ordinary course of business litigation or proceedings which, if adversely decided, could not reasonably be expected to have a consolidated balance sheet for Parent Material Adverse Effect;
(h) promptly, and in any event within five Business Days after the execution or entry thereof, the execution or entry by the Borrower or any Financial Institution Subsidiary of any Regulatory Agreement, together with a copy thereof if such disclosure is permitted by applicable law; and
(i) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the Borrower or any Subsidiary, as the Lender may reasonably request. Documents required to be delivered pursuant to Section 5.1(a) or (b) or Section 5.1(f) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents or provides a link thereto on the Borrower’s website on the internet at the website address set forth in Section 9.1 or (ii) on which such documents are posted on the Borrower’s behalf on an internet or intranet website, if any, to which the Lender have access; provided, that (A) the Borrower shall deliver paper copies of such documents to the Lender if so requested until a written notice is received by the Borrower from the Lender to cease delivering paper copies and (B) the Borrower shall notify (which may be by telex, telefacsimile or electronic mail) the Lender of the posting of any such documents and provide to the Lender by electronic mail electronic versions (i.e. soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of all Compliance Certificates. The Borrower and each of its Subsidiaries maintain effective internal control over financial reporting (as defined under Rule 13-a15 and 15d-15 of the end 1934 Act Regulations) and a system of such fiscal year, internal accounting controls sufficient to provide reasonable assurances that: (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; (D) the related consolidated statements of income, shareholders’ equity recorded accountability for assets is compared with the existing assets at reasonable intervals and cash flows for such fiscal year, all appropriate action is taken with respect to any differences; and (E) any interactive data in reasonable detail eXtensible Business Reporting Language included in the Borrower’s SEC filings fairly presents the required information and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be is prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX rules and guidelines applicable thereto. The Borrower and each of its Subsidiaries shall maintain an effective system of disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 of the 1934 Act Regulations) that are designed to ensure that the information required to be disclosed by the Borrower in the reports that it files or a successor system related thereto;submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms, and is accumulated and communicated to the Borrower’s management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
Appears in 1 contract
Samples: Term Loan Agreement (BNC Bancorp)
Financial Statements and Other Information. The Borrower will furnish shall deliver to each of the Administrative AgentLenders:
(a) as soon as available and in any event within 30 90 days after the end of each month (including fiscal year of the last month Borrower, consolidated and consolidating statements of each income, retained earnings and cash flows of the Borrower and its Subsidiaries for such fiscal quarter), a year and the related consolidated and consolidating balance sheet for Parent sheets of the Borrower and its Subsidiaries as of at the end of such monthfiscal year, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in each case in comparative form the corresponding consolidated and consolidating figures for the corresponding period in the preceding fiscal year, together with a certificate and accompanied
(i) in the case of a Responsible Officer such consolidated statements and balance sheet of the Borrower stating Borrower, by an opinion thereon of independent certified public accountants of recognized national standing, which opinion shall state that such consolidated financial statements fairly present in all material respects the consolidated financial condition and results of Parent operations of the Borrower and its Subsidiaries as at the end of, and for, such date fiscal year in accordance with generally accepted accounting principles, and a statement of such accountants to the effect that, in making the examination necessary for their opinion, nothing came to their attention that caused them to believe that the Borrower was not in compliance with Section 9.10 and (ii) in the case of such consolidating statements and balance sheets, by a certificate of a Financial Officer of the Borrower, which certificate shall state that such consolidating financial statements fairly present the respective individual unconsolidated financial condition and results of operations of Parent the Borrower and of each of its Subsidiaries for the period ended on such date and have been prepared Subsidiaries, in each case in accordance with GAAPgenerally accepted accounting principles, subject to changes resulting from normalconsistently applied, as at the end of, and for, such fiscal year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following 45 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each quarterly fiscal period of each fiscal year of the SECBorrower, a consolidated balance sheet for Parent and consolidating statements of income, retained earnings and cash flows of the Borrower and its Subsidiaries for such period and for the period from the beginning of the respective fiscal year to the end of such period, and the related consolidated and Credit Agreement ---------------- consolidating balance sheets of the Borrower and its Subsidiaries as at the end of such period, setting forth in each case in comparative form the corresponding consolidated and consolidating figures for the corresponding periods in the preceding fiscal year (except that, in the case of balance sheets, such comparison shall be to the last day of the prior fiscal year), accompanied by a certificate of a Financial Officer of the Borrower, which certificate shall state that such consolidated financial statements fairly present the consolidated financial condition and results of operations of the Borrower and its Subsidiaries, and such consolidating financial statements fairly present the respective individual unconsolidated financial condition and results of operations of the Borrower and of each of its Subsidiaries, in each case in accordance with generally accepted accounting principles, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments);
(c) concurrently with any delivery of financial statements under clause (a) or (b) of this Section 9.01, a certificate of a Financial Officer of the Borrower (i) to the effect that no Default has occurred and is continuing (or, if any Default has occurred and is continuing, describing the same in reasonable detail and describing the action that the Borrower has taken or proposes to take with respect thereto) and (ii) setting forth in reasonable detail the computations necessary to determine whether the Borrower is in compliance with Section 9.10 as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the respective quarterly fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding or fiscal year;
(d) promptly upon their becoming available, together copies of all registration statements and regular periodic reports, if any, that the Borrower shall have filed with a certificate of a Responsible Officer the Securities and Exchange Commission (or any governmental agency substituted therefor) or any national securities exchange;
(e) promptly upon the mailing thereof to the shareholders of the Borrower stating that generally, copies of all financial statements, reports and proxy statements so mailed; and
(f) from time to time such financial statements fairly present in all material respects other information regarding the financial condition condition, operations, business or prospects of Parent and the Borrower or any of its Subsidiaries as at such date (including, without limitation, any Plan or Multiemployer Plan and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAPany reports or other information required to be filed under ERISA), subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q or compliance with the SEC shall be deemed to satisfy the requirements terms of this Section 8.01(b) on Agreement and Credit Agreement ---------------- the date on which such report is first available via the SEC’s XXXXX system other Loan Documents, as any Lender or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 Agent may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;reasonably request.
Appears in 1 contract
Samples: Credit Agreement (International Telecommunication Data Systems Inc)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentAgent and, pursuant to the procedures described in Section 10.1(b)(i), each Lender:
(a) as soon as available and in any event within 30 120 days after the end of each month (including Fiscal Year of Borrower, a copy of the last month of each fiscal quarter)annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, partners’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and reported on by KPMG LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of such audit) to the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five (5) Business Days following 60 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three Fiscal Quarters of the Borrower, a an unaudited consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period quarter and the corresponding portion of Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in the preceding fiscal yearclauses (a) and (b) above, together with a certificate of Compliance Certificate signed by a Responsible Officer Officer;
(d) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, and all annual financial reports which the Borrower files with FERC or the Department of Energy; provided, that the Borrower’s financial reports filed with FERC or the Department of Energy required to be delivered pursuant to Section 6.01(d) may be deemed to satisfy the requirements of this Section 8.01(b) delivered on the date on which such report is first available via documents are posted on the SECBorrower’s XXXXX system behalf on an Internet or intranet website, if any, to which each Lender and the Agent have access (whether a successor system related theretocommercial, governmental or third-party website);
(ce) as soon as available promptly upon the entering into thereof, copies of any amendments, supplements or other modifications of or to the Joint Facilities Ownership Agreement or the Joint Facilities Operating Agreement; and
(f) promptly following any request therefor, such other information regarding the results of operations, business affairs and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as financial condition of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP Borrower or another firm of independent certified public accountants of recognized national standing reasonably acceptable to any Subsidiary as the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to Agent or any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 Lender may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish MCK Nevada shall deliver to each Purchaser (so long as such Purchaser holds at least 10% of the Administrative Agentaggregate principal amount of the Notes, 10% of the outstanding Redeemable Stock, 10% of the outstanding Convertible Stock or Investor Common Stock) and to each transferee of a Purchaser who is the holder of at least 25% of the aggregate principal amount of the Notes, 25% of the outstanding Redeemable Stock or 25% of the outstanding Convertible Stock or Investor Common Stock:
(a) as soon as available and but in any event within 30 days after the end of each month (including the last month of monthly accounting period in each fiscal quarter)year, a unaudited consolidated statements of income and cash flows of MCK Nevada and its Subsidiaries for such monthly period and for the period from the beginning of the fiscal year to the end of such month, and unaudited consolidated balance sheet for Parent sheets of MCK Nevada and its Subsidiaries as of the end of such monthmonthly period, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for each case comparisons to MCK Nevada's annual budget and, after May 1, 1997, to the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that and all such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been shall be prepared in accordance with GAAPgenerally accepted accounting principles, consistently applied, subject to changes resulting from normal, the absence of footnote disclosures and to normal year-end audit adjustments for recurring accruals, and except for the absence of notesshall be certified by MCK Nevada's chief financial officer;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of 90 days after the end of such quartereach fiscal year, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent MCK Nevada and its Subsidiaries for the period ended on such date fiscal year, and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent sheets of MCK Nevada and its Subsidiaries as of the end of such fiscal year, setting forth in each case comparisons to MCK Nevada's annual budget and to the related consolidated statements of income, shareholders’ equity and cash flows for such preceding fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP generally accepted accounting principles, consistently applied, and, with respect to the consolidated portions of such statements (but not with respect to the annual budget), accompanied by an opinion containing no exceptions or qualifications of a "Big Six" accounting firm;
(c) at least 30 days but not more than 90 days prior to the beginning of each fiscal year, an annual budget prepared on a monthly basis for MCK Nevada and its Subsidiaries for such fiscal year (displaying anticipated statements of income and cash flows and balance sheets), and promptly upon preparation thereof any other significant budgets prepared by MCK Nevada and any revisions of such annual or other budgets, and within 30 days after any monthly period in which shall not be subject there is a material adverse deviation from the annual budget, an Officer's Certificate explaining the deviation;
(d) promptly (but in any event within five business days) after the discovery or receipt of notice of any Event of Noncompliance, any default under any material agreement to which it or any Impermissible Qualificationof its Subsidiaries is a party or any other material adverse change, event or circumstance affecting MCK Nevada or any Subsidiary (including, without limitation, the filing of any material litigation against MCK Nevada or any Subsidiary or the existence of any dispute with any Person which involves a reasonable likelihood of such litigation being commenced), an Officer's Certificate specifying the nature and period of existence thereof; provided thatand
(e) with reasonable promptness, such other information and financial data concerning MCK Nevada and its Subsidiaries as any Person entitled to receive information under this Section 3.1 may reasonably request. Each of the financial statements referred to in Section 3.1(a) or 3.1(b) above shall present fairly in all material respects the consolidated financial condition, results of operations and cash flows of MCK Nevada in accordance with generally accepted accounting principles applied on a consistent basis as of the dates and for the fiscal years ending 2018 periods set forth therein, subject, in the case of the unaudited financial statements, to changes resulting from normal year-end adjustments for recurring accruals (none of which would, alone or in the aggregate, be materially adverse to the financial condition, operating results, assets, operations or business prospects of MCK Nevada and 2019 may its Subsidiaries taken as a whole). Notwithstanding the foregoing, the provisions of this Section 3.1 and Section 3.2 below shall cease to be subject to an Impermissible Qualification; provided further that, effective so long as Parent MCK Nevada is subject to the public periodic reporting requirements of the Securities Exchange ActAct and continues to comply with such requirements. Except as otherwise required by law or judicial order or decree or by any governmental agency or authority, Parent’s filing each Person entitled to receive information regarding MCK Nevada and its Subsidiaries under this Section 3.1 and Section 3.2 below shall use the same standards and controls which such Person uses to maintain the confidentiality of an Annual Report on Form 10-K its own confidential information (but in no event less than reasonable care) to maintain the confidentiality of all nonpublic information of MCK Nevada or any of its Subsidiaries obtained by it pursuant to this Section 3.1 and Section 3.2 below; PROVIDED THAT each such Person may disclose such information in connection with the SEC sale or transfer of any Notes, Redeemable Stock, Convertible Stock or Investor Common Stock if such Person's transferee agrees in writing to be bound by the provisions hereof. For purposes of this Agreement and the Registration Agreement, all holdings of Notes, Redeemable Stock, Convertible Stock and Investor Common Stock by Persons who are Affiliates of each other (which, for this purpose, shall also include Persons which have received distributions of Redeemable Stock, Convertible Stock or Investor Common Stock from a partnership holding such securities) shall be deemed to satisfy aggregated for purposes of meeting any threshold tests under this Agreement and the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Registration Agreement.
Appears in 1 contract
Samples: Stock and Note Purchase Agreement (MCK Communications Inc)
Financial Statements and Other Information. The Borrower will shall furnish or cause to the Administrative Agentbe furnished to each Credit Party:
(a) as soon as available and available, but in any event within 30 90 days after the end of each month (including fiscal year of the last month of each fiscal quarter)Borrower, a consolidated balance sheet for Parent copy of its Statement of Assets and its Subsidiaries Liabilities as of at the end of such monthfiscal year, and together with the related consolidated statements Schedule of income Investments and cash flows for such month Statements of Operations and the portion Changes in Net Assets as of the fiscal year and through the end of such monthfiscal year; each such Statement of Assets and Liabilities and the related Schedule of Investments and Statements of Operations and Changes in Net Assets shall be certified without qualification by independent public accountants, all which certification shall (i) state that the examination by such independent public accountants in reasonable detail connection with such financial statements has been made in accordance with those auditing standards required by the ICA and setting forth in comparative form prescribed by the figures SEC for the corresponding period Borrower or, to the extent not so required or prescribed, generally accepted auditing standards in the preceding fiscal year, together with a certificate United States and (ii) include the opinion of a Responsible Officer of the Borrower stating such independent public accountants that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance conformity with GAAPApplicable Accounting Principles, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notesas otherwise specified in such opinion;
(b) as soon as available and available, but in any event within five (5) Business Days following 90 days after the date on which Parent files or is required to file a Quarterly Report on Form 10end of the first semi-Q with annual accounting period in each fiscal year of the SECBorrower, a consolidated balance sheet for Parent copy of the Borrower's Statement of Assets and its Subsidiaries Liabilities as of at the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal yearsemiannual period, together with a certificate the related Schedule of a Responsible Officer Investments and Statements of the Borrower stating that Operations and Changes in Net Assets for such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretoperiod;
(c) [Reserved];
(d) as soon as available and available, but in any event within five not later than seven (57) Business Days following days after the date on which Parent files or is required last Friday of each calendar month and upon the request of any Lender (but not more than once per week), the Borrower shall deliver to file its Annual Report on Form 10-K with the SEC, Administrative Agent a consolidated balance sheet for Parent and its Subsidiaries as duly completed certificate of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably duly authorized representative (who shall be acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements ) of the Exchange Act- 41 – Borrower, Parent’s filing substantially in the form of an Annual Report Exhibit G hereto appropriately completed for a month-end date;
(e) no later than one Business Day after the request of any Lender therefor which is received by the Borrower at or before 3:00 p.m., New York City time, on Form 10-K with any Business Day and no later than two Business Days after the SEC shall be deemed to satisfy request of any Lender therefor which is received by the requirements Borrower after 3:00 p.m., New York City time, on any Business Day, a calculation of this Section 8.01(c) the Adjusted Asset Coverage as of close of business on the date of such request;
(f) as soon as practicable, a copy of each general mailing to the shareholders of the Borrower to the extent such mailing includes a Prospectus or any material change in the terms thereof, including any material change in the investment objectives or any change in (i) its Fundamental Policies, (ii) limitations on which borrowings, or (iii) the identity of the directors, trustees, executive officers or other similar Person of the Borrower or its Investment Adviser;
(g) prompt written notice of any contest referred to in Sections 6.5 or 6.6;
(h) promptly after the execution thereof, copies of all material amendments or other material changes to the Prospectus, Registration Statement, Fundamental Policies, the Organizational Documents, all investment advisory contracts, all contracts with any principal underwriter and any new investment advisory contracts and any new contracts with any principal underwriter entered into after the Effective Date;
(i) prompt written notice in the event that the Borrower decides to seek the approval of its Board and, if necessary, its shareholders, to effect a change in any of its Fundamental Policies;
(j) not later than one Business Day after the delivery of a Borrowing Request, written notice in the event that (i) the amount of Excluded Assets taken into account in the calculation of the Adjusted Asset Coverage Ratio set forth on such report Borrowing Request is first available via lower than the SEC’s XXXXX system actual amount of such Excluded Assets as of the close of business on the Business Day immediately preceding the delivery of such Borrowing Request and (ii) had the actual amount of Excluded Assets been utilized in such calculation, the Adjusted Asset Coverage Ratio at the time of such Borrowing would have been greater than 3.00:1.00; and
(k) promptly after request therefor, such (i) other information regarding the business, assets, income or a successor system financial condition of the Borrower as any Credit Party may reasonably request from time to time and (ii) additional documents and information in order to comply with "know-your-customer" and other anti-terrorism, anti-money laundering and similar rules and regulations and related thereto;policies.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent:
(a) as soon as available and in any event within 30 thirty (30) days after the end of each month (including i) the last month of each fiscal quarter), a consolidated balance sheet for Parent sheets of the Borrower and its Subsidiaries as of the end of such month, month and (ii) the related consolidated statements of income of the Borrower and its Subsidiaries for such month in each case, in the form customarily provided to senior management of the Borrower prior to the Closing Date and provided to the Lenders prior to the Closing Date;
(b) as soon as available and in any event within forty-five (45) days after the end of the first three (3) fiscal quarters of each fiscal year (i) the consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such fiscal quarter and (ii) the related consolidated statements of income, shareholder’s equity and cash flows of the Borrower and its Subsidiaries for such month quarter and the portion of the fiscal year through the end of such monthfiscal quarter, in each case prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating ; provided that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is documents required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject be furnished pursuant to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC this Section 8.01(a) shall be deemed to satisfy the requirements of this Section 8.01(b) furnished on the date that such documents are publicly available on which such report is first available via “XXXXX” or the SECBorrower’s XXXXX system or a successor system related theretowebsite;
(c) as soon as available and in any event within five ninety (590) Business Days following days after the date on which Parent files or is required to file its Annual Report on Form 10-K with end of each fiscal year (i) the SEC, a consolidated balance sheet for Parent sheets of the Borrower and its Subsidiaries as of the end of such fiscal year, year and (ii) the related consolidated statements of income, shareholders’ equity and cash flows of the Borrower and its Subsidiaries for such fiscal year, in each case prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by (x) a copy of management’s discussion and analysis with respect to such financial statements and (y) a report and opinion thereon of RBSM Pricewaterhouse Coopers LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and be unqualified and not include any Going Concern Limitation, and in the case of such consolidated financial statements, certified by a Responsible Officer of the Borrower; provided that documents required to be furnished pursuant to this Section 8.01(c) shall be deemed furnished on the date that such documents are publicly available on “XXXXX” or the Borrower’s website;
(d) together with the financial statements required pursuant to Sections 8.01(b) and (c), a compliance certificate signed by the chief financial or accounting Responsible Officer of the Borrower as of the end of the applicable accounting period (which delivery may be by electronic communication including email and shall be deemed to be an original, authentic counterpart thereof for all purposes) substantially in the form of Exhibit E (a “Compliance Certificate”) including (i) a statement that (x) such financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as at such date and (y) the results of operations of the Borrower and its Subsidiaries for the period ended on such date have been prepared in accordance with GAAP and which shall not be consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes, (ii) a statement as to whether or not such financial statements contain a Going Concern Limitation and (iii) details of any Impermissible Qualificationother issues that are material that are raised by auditors and any occurrence or existence of any event, circumstance, act or omission that would cause any representation or warranty contained in Section 7.07, Section 7.18 or Section 7.22 to be incorrect in any material respect (or in any respect if such representation or warranty is qualified by materiality or by reference to Material Adverse Effect or Material Adverse Change) if such representation or warranty were to be made at the time of delivery of a Compliance Certificate. For the avoidance of doubt, no representation or warranty contained in Section 7.07, Section 7.18 or Section 7.22 is required to be, shall be or shall be deemed to be made in connection with a delivery of any Compliance Certificate;
(e) after being prepared by the Borrower and approved by its Board, and promptly following the Administrative Agent’s request therefor, a consolidated budget for the Borrower and its Subsidiaries for the fiscal year to which such budget relates; provided that, for each fiscal year, on or before the financial statements sixtieth (60th) day following the beginning of such fiscal year, the Borrower shall prepare, and its Board shall approve such consolidated budgets for such fiscal year, and the fiscal years ending 2018 and 2019 may be subject to an Impermissible QualificationBorrower shall notify the Administrative Agent promptly after the Board has given such approval;
(f) promptly after the same are released, copies of all press releases (other than any press release that is immaterial, routine or administrative in nature); provided further that, so long as Parent is subject that documents required to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC be furnished pursuant to this Section 8.01(f) shall be deemed to satisfy the requirements of this Section 8.01(c) furnished on the date that such documents are publicly available on “XXXXX” or the Borrower’s website;
(g) promptly, and in any event within five (5) Business Days after receipt thereof by an Obligor thereof, copies of each notice or other correspondence received from (i) any securities regulator or stock exchange to the authority of which any Obligor may become subject from time to time, concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of such Obligor, in each case, excluding any investigation or inquiry that is immaterial, routine or administrative in nature or (ii) any material written correspondence or any other material written communication with the FDA or any other Regulatory Authority relating to any event or circumstance which would reasonably be expected to result in liability to the Borrower in excess of $1,000,000; provided that documents required to be furnished pursuant to this Section 8.01(g) shall be deemed furnished on the date that such documents are publicly available on “XXXXX” or the Borrower’s website;
(h) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of each Obligor and its Subsidiaries (other than any report or any communication that is immaterial, routine or administrative in nature), and copies of all annual, regular, periodic and special reports and registration statements which any Obligor or its Subsidiaries may file or be required to file with any securities regulator or stock exchange to the authority of which such report Obligor or such Subsidiary, as applicable, may become subject from time to time; provided that documents required to be furnished pursuant to this Section 8.01(h) shall be deemed furnished on the date that such documents are publicly available on “XXXXX” or the Borrower’s website;
(i) the information regarding insurance maintained by the Borrower and its Subsidiaries as and when required under Section 8.05;
(j) promptly, and in any event within five (5) Business Days after the Borrower obtains knowledge of any Claim related to any Product or inventory involving more than $2,500,000, written notice thereof from a Responsible Officer of the Borrower which notice shall include a statement setting forth details of such return, recovery, dispute or claim;
(k) as soon as possible and in any event within five (5) Business Days after the end of each calendar month, evidence reasonably satisfactory to the Administrative Agent that, as of the last day of such calendar month, the Borrower is first available via in compliance with the SECMinimum Liquidity requirement set forth in Section 10.01, which evidence may be in the form of Xxxxxxxx’s XXXXX system bank account statements;
(l) promptly, copies of any reports of the Borrower and its Subsidiaries with respect to key performance indicators in the form provided to senior management of the Borrower to the extent such reports are determined to be material by the Board of the Borrower; provided that any such materials may be redacted by the Borrower to (A) exclude information relating to the performance of the Administrative Agent or any Lender, to the Borrower’s strategy regarding the Loans or performance or non-performance under the Loan Documents or to matters of conflict of interest to the Administrative Agent or any Lender, (B) preserve attorney-client or work-product privilege or (C) protect proprietary information, trade secrets, or individually identifiable health information (as defined under HIPAA) or other confidential information relating to healthcare patients; provided, further that such redactions are restricted so as to be only as extensive as is reasonably necessary in order to exclude information described in clauses (A), (B) or (C); and
(m) such other information respecting the businesses, financial performance, operations condition of the assets or liabilities of the Obligors (including with respect to the Collateral), taken as a successor system related thereto;whole, as the Administrative Agent may from time to time reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 30 90 days after the end of each month (including the last month fiscal year of each fiscal quarter)Borrower, a copy of the annual audited report for such fiscal year for the Borrower and its Subsidiaries, containing a consolidated and unaudited consolidating balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, fiscal year and the related consolidated and unaudited consolidating statements of income income, stockholders' equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthyear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding previous fiscal year, together with all in reasonable detail and reported on by Ernst & Young or other independent public accountants of nationally recognized standing (without a certificate "going concern" or like qualification, exception or explanation and without any qualification or exception as to scope of a Responsible Officer of such audit) to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such fiscal year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of 45 days after the end of such quarter, and the related consolidated statements each fiscal quarter of income and cash flows for such quarter and the portion of the each fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects (other than the financial condition of Parent last fiscal quarter), an unaudited consolidated and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements consolidating balance sheet of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent Borrower and its Subsidiaries as of the end of such fiscal year, quarter and the related unaudited consolidated and consolidating statements of income, shareholders’ equity income and cash flows of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of such fiscal year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of Borrower's previous fiscal year, accompanied all certified by a report and opinion thereon of RBSM LLP the chief financial officer, treasurer or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements controller of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Borrower as presenting fairly
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent:
(a) as soon as available and in any event within 30 days after the end of each month (including the last month of each fiscal quarter), a consolidated balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(d) together with the financial statements required pursuant to Sections 8.01(a) (b) and (c), a compliance certificate signed by a Responsible Officer of the Borrower as of the end of the applicable accounting period substantially in the form of Exhibit E (a “Compliance Certificate”), including details of any issues raised by Parent’s auditors that would be reasonably likely to result in a Material Adverse Effect and the creation or other acquisition of any Intellectual Property by any Obligor or any of its Subsidiaries after the date hereof and during such prior fiscal quarter for which such Compliance Certificate is delivered, which is registered or becomes registered or the subject of an application for registration with the U.S. Copyright Office or the U.S. Patent and Trademark Office, as applicable, or with any other equivalent foreign Governmental Authority;
(e) within three (3) Business Days after the end of each fiscal month, a certificate signed by a Responsible Officer of the Borrower as of the end of such fiscal month demonstrating compliance with Section 10.01 hereof;
(f) as soon as available and in any event no later than forty-five (45) days following the end of any fiscal year of Parent, copies of an annual budget (or equivalent) for Parent and its Subsidiaries, approved by Parent’s Board for the next succeeding fiscal year, in form reasonably satisfactory to the Administrative Agent, accompanied by a certificate of the chief financial officer of Parent certifying that (i) such budget was prepared by Parent in good faith, (ii) Parent had at the time of preparation of the budget, and at all times thereafter (including on and as of the date of delivery to the Administrative Agent of such budget) has continued to have, a reasonable basis for all of the assumptions contained in such budget and (iii) such budget was prepared in accordance with, and based upon, such assumptions;
(g) promptly, and in any event within five (5) Business Days after receipt thereof by any Obligor, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of such Obligor (but in any case excluding any routine comments and letters from the SEC relating to such Obligor’s filings with the SEC or information that would violate confidentiality obligations to a Governmental Authority);
(h) information regarding insurance maintained by Parent and its Subsidiaries as required under Section 8.05;
(i) within five (5) days after delivery thereof, copies of all statements, reports and notices made available to Parent’s Board or holders of Parent’s Equity Interests; provided that any such material may be redacted by Parent to (i) exclude information relating to the Lenders (including the Borrower’s strategy regarding the Term Loan), (ii) prevent the disclosure of trade secrets and (iii) protect and preserve attorney-client privilege;
(j) as soon as possible and in any event within five (5) Business Days after the Borrower obtains knowledge of any Claim related to any Obligor that that involves more than $500,000, written notice thereof from a Responsible Officer of the Borrower which notice shall include any statement setting forth details of such Claim;
(k) as soon as possible and in any event within two (2) Business Days after the Borrower or any other Obligor obtains knowledge of and/or receipt by any such party from Sanofi, the Trustee (as defined in the S/I Deed of Trust) and/or any of their respective affiliates, officers, directors, agents or representatives of any notice (whether oral, in writing or otherwise) of any event of default (or any event that with the passage of time or the giving of notice (or both) would constitute an event of default), a default and/or a breach by Borrower and/or Parent under any Sanofi Document, including, but not limited to, any sale or notice of any intended sale of the Mortgaged Premises, any foreclosure or notice of foreclosure relating to the Mortgaged Premises (including under the S/I Deed of Trust), any intended or actual termination of any Sanofi Document, and any claim made against Borrower or Parent (including a claim for indemnification under any Sanofi Document);
(l) concurrently with the delivery to Sanofi thereof, any reports required to be delivered to Sanofi pursuant to the terms of any Sanofi Document; and
(m) such other information respecting the operations, properties, business or condition (financial or otherwise) of the Obligors (including with respect to the Collateral) as the Administrative Agent may from time to time reasonably request; provided, notwithstanding the foregoing, Borrower covenants and agrees that neither Borrower, nor any other Person acting on its behalf, will provide, or be obligated to provide, any Lender or its representatives with any information that Borrower believes constitutes material non-public information, unless prior thereto such Lender shall have confirmed to Borrower in writing that it consents to receive such information. Borrower understands and confirms that each Lender shall be relying on the foregoing covenant in effecting transactions in securities of Borrower.
Appears in 1 contract
Samples: Forbearance Agreement and Second Amendment to Credit Agreement and Guaranty (Icagen, Inc.)
Financial Statements and Other Information. The Borrower will shall furnish to the Administrative Agent:
Agent (and the Administrative Agent agrees to promptly deliver or make available to the Lenders): (a) as soon as available, and in any event within 90 days after the close of each Fiscal Year (provided that such period may be extended upon election by the Borrower to the date such financial statements are otherwise required to be filed with the SEC pursuant to Applicable Laws after giving effect to all available extension and cure periods), balance sheets as of the end of such Fiscal Year (commencing with the Fiscal Year ending December 31, 2020) and the related statements of income, cash flow and shareholders’ equity for such Fiscal Year, on a consolidated basis for the Borrower and its consolidated Subsidiaries, which consolidated statements shall be audited and certified (without qualification) by a firm of independent certified public accountants of recognized standing selected by the Borrower and reasonably acceptable to the Administrative Agent, and shall set forth in comparative form corresponding figures for the preceding Fiscal Year; (b) as soon as available, and in any event within 45 days after the end of each of the first three Fiscal Quarters (provided that such period may be extended upon election by the Borrower to the date such financial statements are otherwise required to be filed with the SEC pursuant to Applicable Laws after giving effect to all available extension and cure periods), unaudited balance sheets as of the end of such Fiscal Quarter and the related statements of income, cash flow and shareholders’ equity for such Fiscal Quarter and for the portion of the Fiscal Year 83 then elapsed, on a consolidated basis for the Borrower and its consolidated Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by a Responsible Officer of the Borrower with relevant knowledge or responsibility of the Borrower as prepared in accordance with GAAP and fairly presenting in all material respects the financial position and results of operations for such Fiscal Quarter and period, subject to normal year-end adjustments and the absence of footnotes; (c) concurrently with the delivery of financial statements under clause (a) or (b) above, a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower, which shall include as an attachment thereto (i) a calculation of Consolidated Interest Expense for the applicable trailing four Fiscal Quarters, including the component figures thereof, and (ii) a separate set of financial statements (which may be unaudited) eliminating the financial position and results of operations of the Unrestricted Subsidiaries, if any, as of the applicable date and for the applicable period then ended; (d) concurrently with delivery of financial statements under clause (a) above, copies of all detailed audit reports, final management letters and other material reports submitted to the Borrower by their accountants in connection with such financial statements; (e) not later than 30 days after the end of each Fiscal Year, projections of the Borrower’s consolidated (i) results of operations for the next Fiscal Year, month by month, (ii) balance sheets and cash flow for the next Fiscal Year, quarter by quarter, and (iii) balance sheet, results of operations and cash flow for the next three Fiscal Years, year by year; (f) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or any of its Subsidiaries pursuant to the terms of any indenture, loan or credit agreement and not otherwise required to be furnished to the Lenders pursuant to this Section 6.2; (g) as soon as available, but in any event within 30 days after the end of each month (including Fiscal Year of the last month of each fiscal quarter)Borrower, a consolidated balance sheet report summarizing the insurance coverage (specifying type, amount and carrier) in effect for Parent each Loan Party and its Subsidiaries containing such additional information concerning such insurance coverage as of the end of such monthAdministrative Agent, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year or any Lender through the end of such monthAdministrative Agent, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal yearmay reasonably specify; (h) promptly, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five ten (510) Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof; (i) promptly following any request therefor, information and documentation reasonably requested by the date on which Parent files Administrative Agent or is any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Act and the Beneficial Ownership Regulation; (j) promptly after the sending or filing thereof, copies of any annual report to be filed in connection with each Plan or Foreign Plan; and (k) such other reports and information (financial or otherwise) as the Administrative Agent may reasonably request in connection with any Collateral or the financial condition or business of the Borrower or any other Loan Party. Documents required to file a Quarterly Report on Form 10-Q be delivered pursuant to Section 6.2(a), (b) or (j) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarterif so delivered, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) have been delivered on the date on which such report is first documents are (i) posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); or (ii) available via on the SEC’s XXXXX system or a successor system related thereto;
website on the Internet at xxx.xxx.xxx; provided that the Borrower shall notify the Administrative Agent (cwhich shall notify each Lender) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end posting of any such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;documents. 84
Appears in 1 contract
Samples: Credit and Guaranty Agreement (U.S. Concrete, Inc.)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentLender:
(a) as soon as available and in any event within 30 90 days after the end of each month (including fiscal year of Borrower, a copy of the last month of each annual audited report for such fiscal quarter)year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated statements of income income, of changes in shareholders’ equity and of cash flows for such month and the portion of the fiscal year through the end of such month(together with all footnotes thereto), all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding previous fiscal year, together with all in reasonable detail and reported on by KPMG, LLP or other independent public accountants of nationally recognized standing (without a certificate “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of a Responsible Officer of such audit) to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations and cash flows on a consolidated basis of Parent and its Subsidiaries the Borrower for the period ended on such date and have been prepared fiscal year in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five (5) Business Days following 45 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three fiscal quarters of each fiscal year of the Borrower, a consolidated an unaudited balance sheet for Parent of the Borrower and its Subsidiaries on a consolidated basis as of the end of such quarter, fiscal quarter and the related consolidated unaudited statements of income and cash flows of the Borrower and its Subsidiaries on a consolidated basis for such fiscal quarter and the then elapsed portion of the such fiscal year through the end of such quarteryear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in quarter and the preceding corresponding portion of Borrower’s previous fiscal year, together with a certificate of a Responsible Officer all certified by the chief financial officer or treasurer of the Borrower stating that such financial statements as presenting fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, normal year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretofootnotes;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a certificate of a Responsible Officer, (i) certifying as soon as available and in any event within five (5) Business Days following to whether there exists a Default or Event of Default on the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal yearcertificate, and if a Default or an Event of Default then exists, specifying the related consolidated statements of incomedetails thereof and the action which the Borrower has taken or proposes to take with respect thereto, shareholders’ equity and cash flows for such fiscal year, all (ii) setting forth in reasonable detail and setting forth in comparative form calculations demonstrating compliance with Article VI;
(d) concurrently with the figures for the previous fiscal year, accompanied by a report and opinion thereon delivery of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 referred to in clauses (a) and 2019 may be subject to an Impermissible Qualification; provided further that(b) above, so long as Parent is subject to the public reporting requirements duly executed copies of the Exchange ActBorrower’s then-current FR Report Y-9C and FR Report Y-9LP and a duly executed copy of the then-current Call Report for each Financial Institution Subsidiary;
(e) promptly after the same become publicly available, Parent’s filing copies of an Annual Report on Form 10-K all periodic and other reports, proxy statements and other materials filed with the SEC shall be deemed Securities and Exchange Commission, or any Governmental Authority succeeding to satisfy any or all functions of said Commission, or with any national securities exchange, or distributed by the requirements Borrower to its shareholders generally, as the case may be; and
(f) promptly following any request therefor, such other information regarding the results of this Section 8.01(c) on operations, business affairs and financial condition of the date on which such report is first available via Borrower or any Subsidiary as the SEC’s XXXXX system or a successor system related thereto;Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Pinnacle Financial Partners Inc)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 30 90 days after the end of each month Fiscal Year of the Borrower (including and for the last month of each fiscal quarterFiscal Year ended December 31, 2015, as soon as available and in any event no later than April 30, 2016), a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and reported on by KPMG LLP or other independent public accountants of nationally recognized standing or other independent public accountants otherwise acceptable in the preceding fiscal year, together with a certificate of a Responsible Officer reasonable discretion of the Borrower stating Administrative Agent (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five (5) Business Days following 45 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three Fiscal Quarters of the Borrower, a an unaudited consolidated and consolidating balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of such Fiscal Year, and, beginning with the fiscal year through fifth full Fiscal Quarter ending after the end of such quarterClosing Date, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in Fiscal Quarter and the preceding fiscal year, together with a certificate of a Responsible Officer corresponding portion of the Borrower stating that such financial statements fairly present Borrower’s previous Fiscal Year and including management discussion and analysis of operating results inclusive of operating metrics in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretocomparative form;
(c) as soon as available and in any event within five 45 days after the end of each fiscal month (5other than the last fiscal month of each Fiscal Quarter) Business Days following of the date on which Parent files or is required to file its Annual Report on Form 10-K with the SECBorrower, a an unaudited consolidated and consolidating balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such fiscal year, month and the related unaudited consolidated and consolidating statements of income, shareholders’ equity income and cash flows of the Borrower and its Subsidiaries for such fiscal yearmonth and the then elapsed portion of such Fiscal Year, all in reasonable detail and and, beginning with the thirteenth full fiscal month ending after the Closing Date, setting forth in each case in comparative form the figures for the corresponding fiscal month and the corresponding portion of the Borrower’s previous fiscal year, accompanied by a report and opinion thereon Fiscal Year;
(d) concurrently with the delivery of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for referred to in subsections (a) and (b) of this Section, a Compliance Certificate signed by the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further thatprincipal executive officer, so long as Parent is subject to the public reporting requirements principal financial officer or the treasurer of the Exchange Act, Parent’s filing Borrower (i) certifying as to whether there exists a Default or Event of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) Default on the date of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Lenders on which the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries and the Acquired Business, and, if any change has occurred, specifying the effect of such report is first change on the financial statements accompanying such Compliance Certificate;
(e) [reserved];
(f) as soon as available via and in any event within 45 days after the SEC’s XXXXX system end of the calendar year, forecasts and a pro forma budget for the succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow;
(g) promptly after the same become publicly available, if applicable, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or a successor system related thereto;any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (RadNet, Inc.)
Financial Statements and Other Information. The Borrower will furnish to the Agents and each Lender, in form and substance satisfactory to the Administrative AgentAgent and the Required Lenders:
(a) as soon as available and available, but in any event within 30 ninety (90) days after the end of each month fiscal year of Holdings, (including the last month of each fiscal quarter), i) a consolidated balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent Holdings and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of incomeincome or operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and an opinion of independent certified public accountants of recognized national standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and applicable Securities Laws and shall not be subject to any “going concern” or like qualification or exception or contain any qualification arising out of the scope of the audit or contain explanatory language that questions the ability of Holdings and its Subsidiaries to continue as a going concern and (ii) a consolidating income statement of Holdings and its Subsidiaries as at the end of such fiscal year, setting forth in comparative form the figures for the previous fiscal year, accompanied all in reasonable detail and certified by a report the chief executive officer or the chief financial officer of ACG as fairly presenting the financial condition of Holdings and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared its Subsidiaries in accordance with GAAP;
(b) as soon as available, but in any event within forty-five (45) days after the end of each fiscal quarter of each fiscal year of Holdings, a consolidated and consolidating balance sheet of Holdings and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated and consolidating statements of income or operations and a consolidated statement of cash flows for such fiscal quarter and for the portion of the fiscal year of Holdings and its Subsidiaries then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year (other than balance sheet information), all in reasonable detail, such statements to be certified by the chief executive officer or the chief financial officer of ACG as fairly presenting the financial condition, results of operations and cash flows of Holdings and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes and such consolidating statements to be certified by the chief executive officer or the chief financial officer of ACG to the effect that such statements are fairly stated in all material respects when considered in relation to the consolidated financial statements of Holdings and its Subsidiaries;
(c) as soon as available, but in any event within thirty (30) days after the end of each calendar month (or forty-five (45) days in the case of any month that is also the last month of a fiscal quarter or fiscal year), a consolidated and consolidating balance sheet of Holdings and its Subsidiaries as at the end of such fiscal month, and the related consolidated and consolidating statements of income or operations and a consolidated statement of cash flows for such fiscal month and for the portion of the fiscal year of Holdings and its Subsidiaries then ended, setting forth in each case in comparative form the figures for the corresponding calendar month of the previous fiscal year and the corresponding portion of the previous fiscal year (other than balance sheet information), all in reasonable detail, such statements to be certified by the chief executive officer or the chief financial officer of ACG as fairly presenting the financial condition, results of operations and cash flows of Holdings and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes and such consolidating statements to be certified by the chief executive officer or the chief financial officer of ACG to the effect that such statements are fairly stated in all material respects when considered in relation to the consolidated financial statements of Holdings and its Subsidiaries;
(d) as soon as available, but in any event within thirty (30) days after the end of each calendar month (or forty five (45) days in the case of any month that is also the last month of a fiscal quarter or fiscal year), a balance sheet of the Borrower as at the end of such fiscal month, and the related statement of income or operations and a statement of cash flows for such fiscal month and for the portion of the fiscal year of the Borrower then ended, all in reasonable detail, such statements to be certified by a Financial Officer of the Borrower as fairly presenting the financial condition, results of operations and cash flows of the Borrower in accordance with GAAP, except as permitted by Schedule 5.01;
(e) (i) concurrently with any delivery of financial statements under clause (a), (b) or (c) above a certificate of the chief executive officer or chief financial officer of ACG in the form of Exhibit D-1 (A) certifying as to whether a Servicer Default (so long as ACG is the Servicer), a Default or an Event of Default has occurred and, if a Servicer Default (so long as ACG is the Servicer), a Default or an Event of Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (B) stating whether any material change in GAAP and which shall not be subject relevant to such financial statements or in the application thereof has occurred since the date of Holding’s audited financial statements referred to in Section 3.05 and, if any Impermissible Qualification; provided thatsuch change has occurred, specifying the effect of such change on the financial statements for the fiscal years ending 2018 accompanying such certificate; and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements (ii) concurrently with any delivery of financial statements under clause (d) above a certificate of a Financial Officer of the Exchange ActBorrower in the form of Exhibit D-2 certifying as to whether a Default or Event of Default has occurred and, Parent’s filing if a Default or Event of an Annual Report on Form 10-K Default has occurred, specifying the details thereof and any action taken or proposed to be taken with the SEC shall be deemed to satisfy the requirements respect thereto. Any consolidating balance sheet or consolidating statement of income furnished under this Section 8.01(c) 5.01 shall show unconsolidated information for Holdings on the date one hand and ACG and its consolidated subsidiaries on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;other hand and need not show separately consolidating information for ACG and any of its consolidated subsidiaries. Such unconsolidated financial information for ACG and its consolidated subsidiaries shall also include the information included on Schedule 5.01.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative AgentAgent for distribution to the Lenders:
(a) [reserved];
(b) commencing with the fiscal quarter ended September 30, 2019, as soon as available and in any event within 30 forty-five (45) days after the end of each month (including the last month of each fiscal quarter), a the consolidated balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer sheets of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent the Borrower and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended on such date and have been prepared substantially in accordance with GAAPGAAP consistently applied, subject to changes resulting from normal, year-end audit normal quarterly or year‑end adjustments and except for the absence of notes; provided that, so long as Parent if Borrower is subject to the public reporting requirements of the Exchange Act, ParentBorrower’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five one hundred twenty (5120) Business Days following days after the date on which Parent files or is required to file its Annual Report on Form 10-K with end of each fiscal year, the SEC, a consolidated balance sheet for Parent sheets of the Borrower and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows of the Borrower and its Subsidiaries for such fiscal year, prepared substantially in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM BDO USA, LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agentstanding, which report and opinion shall be prepared in accordance with GAAP generally accepted auditing standards and which shall not be subject to any Impermissible Qualification“going concern” or like qualification or exception or any qualification or exception as to the scope of such audit; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent if Borrower is subject to the public reporting requirements of the Exchange Act, ParentBorrower’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(d) concurrently with the delivery of the reports described in Section 8.01(b) and (c), and within thirty (30) days after the end of each month which does not end at the end of a fiscal year or fiscal quarter of the Borrower, a compliance certificate of a Responsible Officer of the Borrower as of the end of the applicable accounting period (which delivery may, unless a Lender requests executed originals, be by electronic communication including email and shall be deemed to be an original authentic counterpart thereof for all purposes) in the form of Exhibit E (a “Compliance Certificate”) which, for purposes of clarification, shall (i) demonstrate the Borrower’s compliance with Section 8.15 in respect of such month, (ii) for each month end that coincides with the end of a fiscal quarter or fiscal year, (A) state that the representations and warranties made by the Obligors in Article 7 are true in all material respects on and as of the date thereof; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects, and (B) demonstrate the Borrower’s compliance with Section 8.16 in respect of such fiscal quarter or fiscal year and (iii) for each month end that coincides with the end of a fiscal year of the Borrower, provide updated Schedules to this Agreement (if any);
(e) promptly, and in any event within five (5) Business Days after receipt thereof by an Obligor thereof, copies of each notice or other correspondence received from any securities regulator or exchange to the authority of which an Obligor is subject concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of such Obligor;
(f) upon any renewal or replacement, the information regarding insurance maintained by Obligors as required under Section 8.05;
(g) promptly following the Lenders’ written request at any time, proof of compliance with Section 8.15;
(h) within ten (10) days of delivery, copies of all periodic reports distributed by the Borrower to its shareholders generally; provided that (i) any such material may be redacted by the Borrower to exclude information relating to the Loan Documents or the Lenders and (ii) the Lenders shall not be entitled to receive statements, reports and notices relating to topics that (A) are subject to attorney‑client privilege or (B) present a conflict of interest for the Lenders; provided that, if Borrower is subject to the public reporting requirements of the Exchange Act, Borrower’s filing of any such material with the SEC shall be deemed to satisfy the requirements of this Section 8.01(h) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(i) only to the extent requested by the Administrative Agent, a financial forecast for the Borrower and its Subsidiaries for each fiscal year, including forecasted balance sheets, statements of income and cash flows of the Borrower and its Subsidiaries, all of which shall be prepared on a consolidated basis (the “Financial Forecast”);
(j) promptly following any Lender’s written request, certification that such Obligor is not a passive foreign investment company (“PFIC”) within the meaning of Sections 1291 through 1297 of the Code, or, if such Obligor determines that it is a PFIC, such information as would allow the Lender to make a qualified electing fund election with respect to the stock of the Obligor; and
(k) such other information respecting the operations, properties, business or condition (financial or otherwise) of the Obligors (including with respect to the Collateral) as the Lenders may from time to time reasonably request; and
(l) promptly after the receipt thereof, a copy of any “management letter” received from its certified public accountants and the management’s response thereto.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event upon the earlier of the date that is 90 days after the end of each fiscal year of Borrower and the date that is 2 days after such information is filed with the SEC, a copy of the annual audited report for such fiscal year for the Borrower and its Subsidiaries, containing consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and reported on by KPMG L.L.P. or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of such audit) to the effect that such financial statements present fairly in all material respects the financial condition and the results of operations of the Borrower and its Subsidiaries for such fiscal year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event upon the earlier of the date that is 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower and the date that is 2 days after such information is filed with the SEC, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of Borrower’s previous fiscal year, all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a certificate of the chief financial officer or treasurer, (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with Article VII, (iii) setting forth whether the Borrower is in compliance with Section 6.11 and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the Borrower’s most recent audited financial statements referred to in Section 5.4 or which have been previously delivered hereunder and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) as soon as available and in any event within 30 days after the end of each month (including the last fiscal month of each fiscal quarter)the Borrower, a an unaudited consolidated balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, month and the related unaudited consolidated statements of income, shareholders’ equity income of the Borrower and its Subsidiaries for such fiscal month and the then elapsed portion of such fiscal year and unaudited consolidated statements of cash flows for the then elapsed portion of such fiscal year, all certified by the chief financial officer of the Borrower as presenting fairly in reasonable detail all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal quarterly and year-end adjustments and the absence of footnotes;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the SEC, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(f) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the Borrower or any Subsidiary as the Administrative Agent or any Lender may reasonably request;
(g) concurrently with the financial statement referred to in clause (a) above, beginning with the fiscal year ending June 3, 2014 (i) financial projections for the Borrower and its Subsidiaries containing pro forma income statement, balance sheet and cash flow statement for each quarter of the next fiscal year and (ii) an updated corporate chart for the Borrower and its Subsidiaries; and
(h) commencing with the Borrower’s first fiscal quarter for which the Borrower is required, and continuing for so long as the Borrower is required, pursuant to FASB Accounting Standards of Codification No. 810, as amended (“ASC 810”), or any other authoritative accounting guidance (collectively, “Authoritative Guidance”), to consolidate its Franchisees or any other less than 100% owned entity not previously required, under GAAP as in effect on the Closing Date, to be so consolidated (collectively, the “Consolidated Entities”), each set of financial statements delivered pursuant to paragraphs (a) and (b) above shall be accompanied by unaudited financial statements of the character and for the dates and periods as in said paragraphs (a) and (b) covering each of the following:
(i) the Borrower and its Subsidiaries on a consolidated basis, before giving effect to any consolidation of the Consolidated Entities;
(ii) the Consolidated Entities on a consolidated basis; and
(iii) consolidating statements reflecting eliminations or adjustments required in order to reconcile the consolidated statements referred to in subclauses (i) and (ii) above with the consolidated financial statements of the Borrower and its Subsidiaries delivered pursuant to paragraphs (a) and (b) above, setting forth in each case (commencing, in the case of the consolidation of any Consolidated Entity pursuant to Authoritative Guidance, with the Borrower’s fiscal quarter that is four fiscal quarters following such consolidation) in comparative form the figures for the corresponding periods in the previous fiscal year. Documents required to be delivered pursuant to Section 6.1 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, accompanied shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed in Section 11.1; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided, that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by facsimile or e-mail) of the posting of any such documents and provide to the Administrative Agent by e-mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery by a report Lender, and opinion thereon each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of RBSM LLP such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or MLPF&S will make available to the Lenders and the Issuing Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another firm similar electronic system (the “Platform”) and (b) certain of independent certified the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public accountants of recognized national standing reasonably acceptable information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, means that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, which report MLPF&S, the Issuing Bank and opinion the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and MLPF&S shall be prepared in accordance with GAAP and which shall entitled to treat any Borrower Materials that are not be subject to any Impermissible Qualification; provided that, the financial statements marked “PUBLIC” as being suitable only for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements posting on a portion of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Platform not designated “Public Investor.”
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish Deliver to the Administrative AgentLender, in form and substance reasonably acceptable to Lender:
(a) as soon as available and in any event within 30 one hundred twenty (120) days after the end of each month (including Fiscal Year, commencing with the last month of each fiscal quarter)Fiscal Year ending December 31, 2023, a copy of the audited financial statements for such Fiscal Year for Borrower and its Subsidiaries, containing a consolidated and consolidating balance sheet for Parent of Borrower and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated and consolidating statements of income or operations, changes in stockholders' equity and cash flows (together with all footnotes thereto) of Borrower and its Subsidiaries for such month and the portion Fiscal Year, which must include a year-end liquidity analysis of the fiscal year through the end of such monthBorrower, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and audited by independent certified public accounts reasonably acceptable to Lender (without a "going concern" or like qualification, exception or explanation and without any qualification or exception as to scope of such review) to the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent Borrower and its Subsidiaries for the period ended such Fiscal Year on such date a consolidated and have been prepared consolidating basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within forty-five (545) Business Days following days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SECend of each Fiscal Quarter, a an unaudited consolidated and consolidating balance sheet for Parent of Borrower and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated and consolidating statements of income or operations, changes in stockholders' equity and cash flows DOCVARIABLE BABC_DocID4891-7708-7367.4 of Borrower and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date quarter and the results corresponding portion of operations Borrower's previous Fiscal Year, which must include a liquidity analysis of Parent Borrower, all in reasonable detail and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, such consolidated statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of Borrower as presenting fairly the financial condition, results of operations, stockholders' equity and cash flows of Borrower and its Subsidiaries in accordance with GAAP, subject only to changes resulting from normal, normal year-end audit adjustments and except for the absence of notes; provided thatfootnotes and, so long as Parent is subject in the case of such consolidating statements, certified by the chief executive officer, chief financial officer, treasurer or controller of Borrower to the public reporting requirements effect that such statements are fairly stated in all material respects when considered in relation to the consolidated financial statements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretoBorrower and its Subsidiaries;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of Borrower () certifying as soon as available and in any event within five (5) Business Days following to whether there exists a Default or Event of Default on the date on which Parent files of such certificate, and if a Default or is required to file its Annual Report on Form 10-K an Event of Default then exists, () setting forth in reasonable detail calculations demonstrating compliance with the SECfinancial covenants set forth in Article VI, a consolidated balance sheet for Parent (iii) certifying that as of the date thereof, all representations and its warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, (iv) stating whether any change in GAAP or the application thereof has occurred since the Effective Date, and if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, (v) specifying any change in the identity of the Subsidiaries as of the end of such fiscal yearFiscal Year or Fiscal Quarter from the Subsidiaries identified to Lender on the Effective Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures (vi) including an account statement for the previous fiscal yearXxxxxxx Xxxxxx Accounts;
(d) within forty-five (45) days after the end of each calendar quarter, accompanied a Borrowing Base Certificate and any related documents required by a report Lender; provided, however, that at any time when the Revolving Credit Exposure exceeds $50,000,000.00, the Borrowing Base Certificate and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion any related documents required by Lender shall be prepared in accordance provided within forty-five (45) days after the end of each calendar month;
(e) within ten (10) days after the required filing date, copies of any annual and quarterly statutory statements required to be filed with GAAP an insurance regulatory authority by HCPCIC or TypTap; and
(f) promptly following any request therefor, such other information regarding the results of operations, business affairs and which shall not be subject financial condition of Borrower or any Subsidiary as Lender may reasonably request. If at any time Borrower is required to any Impermissible Qualification; provided thatfile periodic reports under Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended, Borrower may satisfy its obligation to deliver the financial statements for the fiscal years ending 2018 referred to in clauses (a) and 2019 may be subject (b) above by delivering such financial statements by electronic mail to an Impermissible Qualification; such e-mail addresses as Lender shall have provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed Borrower from time to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;time.
Appears in 1 contract
Samples: Credit Agreement (HCI Group, Inc.)
Financial Statements and Other Information. The Borrower will furnish Deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within one hundred five (105) days (or such shorter period that is fifteen (15) days greater than the period applicable to the filing of the Borrower’s Annual Report on form 10-K with the SEC, regardless of whether the Borrower is subject to the filing requirements thereof) after the end of each Fiscal Year, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income or operations, changes in stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation (other than any qualification or exception in the last year of this Agreement and due solely to the impending maturity of the Loans and Commitments) and without any qualification or exception as to scope of such audit) to the effect that such financial statements present fairly in all material respects the financial condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within forty-five (45) days (or such shorter period that is fifteen (15) days greater than the period applicable to the filing of the Borrower’s Quarterly Report on Form 10-Q with the SEC regardless of whether the Borrower is subject to the filing requirements thereof) after the end of each Fiscal Quarter, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income or operations, changes in stockholders’ equity and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of Borrower’s previous Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, such consolidated statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower as presenting fairly the financial condition, results of operations, stockholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate, and if a Default or an Event of Default then exists, the actions being taken or proposed to be taken, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) certifying that as of the date thereof, all representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties are true and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties are true and correct in all respects) as of such earlier date, (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the Audited Financial Statements, and if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate and (v) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be;
(d) as soon as available and in any event within 30 days after the end of each month (including the last month of each fiscal quarter)Fiscal Year, a consolidated pro forma budget for the succeeding Fiscal Year, containing an income statement, balance sheet for Parent and statement of cash flow of the Borrower and its Subsidiaries as of the end of such month, and the related consolidated statements of income and cash flows on a quarterly basis for such month succeeding Fiscal Year and forecasts demonstrating projected compliance with the portion requirements of Article VI;
(e) promptly after the fiscal year through same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the end SEC, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(f) promptly following any request therefor, (i) such other information regarding the results of such monthoperations, all in reasonable detail business affairs and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer financial condition of the Borrower stating that such financial statements fairly present in all material respects or any Subsidiary as the financial condition Administrative Agent or any Lender may reasonably request and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of Parent and its Subsidiaries as compliance with applicable “know your customer” requirements under the PATRIOT Act or other applicable anti-money laundering laws. If at such date and any time the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or Borrower is required to file periodic reports under Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended, Borrower may satisfy its obligation (i) to deliver the financial statements referred to in clauses (a) and (b) above by delivering such financial statements by electronic mail to such e-mail addresses as the Administrative Agent and Lenders shall have provided to Borrower from time to time and (ii) to deliver the documents specified in Section 5.1(e) by posting such documents, or providing a Quarterly Report link thereto on Form 10(A) the Borrower’s website on the Internet at the website address listed in Section 11.1 or (B) an Internet or intranet website on which such documents are posted on the Borrower’s behalf and to which each Lender and the Administrative Agent have access (whether a commercial, third-Q with party website or whether sponsored by the SECAdministrative Agent). The Borrower hereby acknowledges that (A) the Administrative Agent and/or an Affiliate thereof may, but shall not be obligated to, make available to the Lenders and the Issuing Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, Debt Domain or a substantially similar electronic transmission system (the “Platform”) and (B) certain of the Lenders (each, a consolidated balance sheet for Parent and “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Subsidiaries as Affiliates, or the respective securities of any of the end of such quarterforegoing, and the who may be engaged in investment and other market-related consolidated statements of income and cash flows for activities with respect to such quarter and the Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the fiscal year through Borrower Materials that may be distributed to the end of Public Lenders and that (1) all such quarterBorrower Materials shall be clearly and conspicuously marked “PUBLIC” which, all in reasonable detail and setting forth in comparative form at a minimum, shall mean that the figures for word “PUBLIC” shall appear prominently on the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of first page thereof; (2) by marking Borrower Materials “PUBLIC,” the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to have authorized the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided thatAffiliate thereof, the financial statements for Arrangers, the fiscal years ending 2018 Issuing Bank and 2019 the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be subject sensitive and proprietary) with respect to an Impermissible Qualification; provided further thatthe Borrower or its securities for purposes of United States federal and state securities laws (provided, so long as Parent is however, that to the extent such Borrower Materials constitute information subject to the public reporting requirements confidentiality provisions of Section 11.11, they shall be treated as set forth in Section 11.11; (3) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with Platform designated “Public Side Information;” and (4) the SEC Administrative Agent and any Affiliate thereof and the Arrangers shall be deemed entitled to satisfy treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Platform not designated “Public Side Information.”
Appears in 1 contract
Samples: Credit Agreement (Primo Water Corp)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower, containing a consolidated balance sheet of the Borrower as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and together with a report by BDO USA, LLP or other independent public accountants of nationally recognized standing (without a “going concern” qualification, exception or explanation and without any qualification or exception as to the scope of such audit) stating that such financial statements present fairly in all material respects the financial condition and the results of operations of the Borrower for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each Fiscal Quarter of the Borrower, an unaudited consolidated balance sheet of the Borrower as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower for such Fiscal Quarter and the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, (iv) setting forth the balance of funds then on deposit in APC Excluded Asset Account, together with a summary statement from the Borrower of the amount and use of any funds withdrawn from the APC Excluded Asset Account following the delivery of the prior Compliance Certificate (or, in the case of the first Compliance Certificate delivered after the Closing Date, since the Closing Date) and (v) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) as soon as available and in any event within 30 days after the end of each month (including the last month of each fiscal quarter)calendar year, forecasts and a consolidated pro forma budget for the succeeding Fiscal Year, containing an income statement, balance sheet for Parent and its Subsidiaries as statement of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notesflow;
(be) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(f) as soon as available and in any event within five 90 days after the end of each Fiscal Year of the Borrower, a SOC 1 Report (5Type II) Business Days issued in accordance with the Statement on Standards for Attestations Engagements No. 16 (or the successor thereto) from BDO USA, LLP or other independent public accountants of nationally recognized standing (and the Borrower shall correct any material deficiencies identified therein as soon as reasonably practicable);
(g) promptly following any request therefor, (i) such other information regarding the date on which Parent files results of operations, business affairs and financial condition of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable anti-money laundering laws. So long as the Borrower is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, Parent’s the Borrower may satisfy its obligation to deliver the financial statements and periodic and other reports, proxy statements and other materials referred to in clauses (a), (b) and (e) above by delivering a notice of filing of such financial statements and periodic and other reports, proxy statements and other materials by electronic mail to such e-mail addresses as the Administrative Agent shall have provided to the Borrower from time to time. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and each Issuing Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on the Platform and (b) certain of the Lenders (each, a Quarterly Report “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on Form 10-Q with the SEC first page thereof; (x) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to have authorized the Administrative Agent, which report the Arrangers, the Issuing Banks and opinion the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute confidential information, they shall be prepared treated as set forth in accordance with GAAP and which shall not Section10.12); (y) all Borrower Materials marked “PUBLIC” are permitted to be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements made available through a portion of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with Platform designated “Public Side Information”; and (z) the SEC Administrative Agent and the Arrangers shall be deemed entitled to satisfy treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Platform not designated “Public Side Information”.
Appears in 1 contract
Financial Statements and Other Information. The Borrower Borrowers will furnish deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 30 90 days after the end of each month Fiscal Year of Borrowers, (including i) a copy of the last month of each fiscal quarter)annual audited report for such Fiscal Year for the Loan Parties, containing a consolidated combined balance sheet for Parent and its Subsidiaries of the Loan Parties as of the end of such month, Fiscal Year and the related consolidated combined statements of income income, ownership equity and cash flows (together with all footnotes thereto) of the Loan Parties for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and reported on by KPMG, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of such audit) to the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Loan Parties for such Fiscal Year on a combined basis in accordance with GAAP and its Subsidiaries that the examination by such accountants in connection with such combined financial statements has been made in accordance with generally accepted auditing standards; and (ii) the combining unaudited balance sheet of the Loan Parties as of the end of such Fiscal Year and the related combining unaudited statements of income of the Loan Parties for such Fiscal Year, setting forth in each case in comparative form the figures for the period ended previous Fiscal Year, all certified by a Responsible Officer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of the Loan Parties on such date and have been prepared a combining basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five 45 days after the end of each Fiscal Quarter of the Borrowers (5) Business Days following other than the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SECfourth Fiscal Quarter of each Fiscal Year), a consolidated an unaudited combined balance sheet for Parent and its Subsidiaries of the Loan Parties as of the end of such quarter, Fiscal Quarter and the related consolidated unaudited combined statements of income and cash flows of the Loan Parties for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period Fiscal Quarter and the corresponding portion of Borrowers’ previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in the preceding fiscal yearclauses (a) and (b) above, together with a certificate of Compliance Certificate signed by a Responsible Officer of the Borrower stating that such Representative;
(d) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Loan Parties with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Loan Parties to their equity holders generally, as the case may be;
(e) promptly following an acquisition for which the Borrowers wish to include Combined Acquisition EBITDA Adjustments for purposes of calculating the Leverage Ratio required under Section 8.1, quarterly financial statements fairly present demonstrating in all material respects reasonable detail the historical Combined EBITDA for the trailing four-quarter period attributable to any Person that is acquired by, and itself becomes, a Loan Party, or the business or assets of any Person or operating division or business unit of any Person acquired by a Loan Party; and
(f) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of Parent and its Subsidiaries any Loan Party or any Subsidiary as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to Agent or any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 Lender may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Macquarie Infrastructure CO LLC)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 30 90 days after the end of each month (including the last month of each fiscal quarter)Fiscal Year, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated and consolidating balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated and consolidating statements of income income, stockholders' equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and Fiscal Year, setting forth in the portion case of the fiscal year through the end of such month, all in reasonable detail and setting forth consolidated statements in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and reported on by Ernst & Young LLP or other independent public accountants of nationally recognized standing (without a "going concern" or like qualification, exception or explanation and without any qualification or exception as to scope of such audit) to the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such Fiscal Year on such date a consolidated and have been prepared consolidating basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five (5) Business Days following 45 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three Fiscal Quarters, a an unaudited consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in quarter and the preceding fiscal yearcorresponding portion of Borrower's previous Fiscal Year, together with a certificate of a Responsible Officer all certified by the chief financial officer or treasurer of the Borrower stating that such financial statements as presenting fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, normal year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretofootnotes;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a certificate of the chief financial officer or treasurer of the Borrower, (i) certifying as soon as available and in any event within five (5) Business Days following to whether there exists a Default or Event of Default on the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal yearcertificate, and if a Default or an Event of Default then exists, specifying the related consolidated statements of incomedetails thereof and the action which the Borrower has taken or proposes to take with respect thereto, shareholders’ equity and cash flows for such fiscal year, all (ii) setting forth in reasonable detail calculations demonstrating compliance with Article VI and setting forth (iii) stating whether any change in comparative form GAAP or the figures for application thereof has occurred since the previous fiscal yeardate of the Borrower's audited financial statements referred to in Section 4.4 and, accompanied by if any change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) concurrently with the delivery of the financial statements referred to in clause (a) above, a report and opinion thereon certificate of RBSM LLP the accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of their examination of such financial statements of any Default or another firm Event of independent certified public accountants of recognized national standing reasonably acceptable Default (which certificate may be limited to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which extent required by accounting rules or guidelines); provided that such accounting firm shall not be subject liable to any Impermissible QualificationPerson if it did not obtain such knowledge which would not be disclosed in the course of an audit conducted under GAAP;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; provided thatand
(f) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements condition of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with Borrower or any Subsidiary as the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system Administrative Agent or a successor system related thereto;any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Haverty Furniture Companies Inc)
Financial Statements and Other Information. The Borrower It will furnish to the Administrative AgentAgent for distribution to the Lenders:
(a) (i) as soon as available and in any event within 30 days after five (5) Business Days following the end of each month date the Borrower is required to file its Form 10-Q with the SEC (including commencing with the last month of fiscal quarter ending March 31, 2023) (other than each fiscal quarterquarter ended December 31st), a the consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of at the end of such month, fiscal quarter and the related consolidated statements statement of income income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries for such month fiscal quarter and for the portion period from the beginning of the then current fiscal year through to the end of such monthfiscal quarter, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous fiscal year, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with (A) a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent the Borrower and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended on such date and have been prepared substantially in accordance with GAAPGAAP consistently applied, subject to changes resulting from normal, year-end audit normal quarterly or year‑end adjustments and except for the absence of notesfootnotes and (B) a management’s discussion and analysis of the financial condition and results of operations, including the Borrower and its Subsidiaries’ liquidity and capital resources; provided that documents required to be furnished pursuant to this Section 8.01(a)(i) shall be deemed furnished on the date that such documents are publicly available on “XXXXX” so long as such filings include quarterly income statements, balance sheets and cash flow statements and (ii) as soon as available and in any event within forty-five (45) days after the end of each fiscal quarter ending December 31st, the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter and the related consolidated statement of income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries for such fiscal quarter, setting forth in comparative form the corresponding figures for the fiscal quarter ending December 31st of the previous fiscal year, all in reasonable detail and prepared substantially in accordance with GAAP consistently applied, subject to changes resulting from normal quarterly or year‑end adjustments and except for the absence of footnotes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or Borrower is required to file a Quarterly Report on its Form 10-Q K with the SECSEC (commencing with the fiscal year ending December 31, a 2022), the consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such quarterfiscal year, and the related consolidated statements statement of income income, shareholders’ equity and cash flows of the Borrower and its Subsidiaries for such quarter and fiscal year, setting forth in each case in comparative form the portion of corresponding figures for the previous fiscal year through the end of such quarteryear, prepared substantially in accordance with GAAP consistently applied, all in reasonable detail accompanied by (i) a report and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate opinion thereon of a Responsible Officer KPMG LLP or another firm of the Borrower stating that such financial statements fairly present in all material respects the financial condition independent certified public accountants of Parent recognized national standing which report and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been opinion shall be prepared in accordance with GAAPgenerally accepted auditing standards and, commencing with the fiscal year ending December 31, 2023, shall not be subject to changes any “going concern” or like qualification or exception audit (other than (A) with respect to, or resulting solely from normalthe upcoming Stated Maturity Date occurring within one year from the time such report is delivered or (B) with respect to the extent the components of such consolidated financial statements relating to a prior fiscal period are separately audited by different independent public accounting firms, year-end the audit adjustments report of any such accounting firm may contain a qualification or exception as to scope of such consolidated financial statements as they relate to such components) or any qualification or exception as to the scope of such audit or related to the maturity of the Term Loans and except for (ii) a management’s discussion and analysis of the absence financial condition and results of notesoperations, including the Obligors’ liquidity and capital resources; provided that, so long as Parent the Borrower is subject to a Publicly Reporting Company, the public reporting requirements of the Exchange Act, ParentBorrower’s filing of a Quarterly Report on Form 10-Q an annual report with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K concurrently with the SECnotification that the reports described in Section 8.01(a) and 8.01(b) are available, a consolidated balance sheet for Parent and its Subsidiaries compliance certificate of a Responsible Officer of the Borrower as of the end of the applicable accounting period (which delivery may, unless a Lender requests executed originals, be by electronic communication including email and shall be deemed to be an original authentic counterpart thereof for all purposes) in the form of Exhibit E (a “Compliance Certificate”) which, for purposes of clarification, shall (i) confirm the Obligors’ compliance with Section 8.11 and Section 8.15, (ii) state the representations and warranties made by the Obligors in Article 7 are true and correct in all material respects on and as of the date thereof; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects (and if a representation and warranty is untrue or incorrect, state the proposed actions that the Obligors intend to take in connection with such untrue or incorrect representation and warranty), (iii) confirm that no Default or Event of Default is continuing (and if a Default or Event of Default has occurred and is continuing state the proposed actions that the Obligors intend to take in connection with such Default or Event of Default), (iv) for Compliance Certificates delivered at the end of any fiscal year, attach updated Schedules (if any) to this Agreement and the related consolidated statements (v) provide a copy of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualificationnew Material Agreement; provided that, that the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, ParentBorrower’s filing of an Annual Report on Form 10-K any such material with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c8.01(c)(v) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto; provided further, notwithstanding the foregoing, Compliance Certificates delivered in connection with Section 8.01(a)(ii) shall only be required to confirm the Obligor’s compliance with Section 8.11 and Section 8.15;
(d) promptly, and in any event within five (5) Business Days after receipt thereof by an Obligor thereof, copies of each notice or other correspondence received from any securities regulator or exchange to the authority of which an Obligor is subject concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of such Obligor;
(e) the information regarding insurance maintained by Obligors as and when required under Section 8.05;
(f) promptly following the Lenders’ written request at any time, proof of the Obligors’ compliance with Section 8.15(a), which may include statements showing the current balance of each account of the Obligors holding Unrestricted Cash necessary to establish compliance with Section 8.15(a);
(g) within ten (10) days of delivery, copies of all periodic reports distributed by the Borrower to its shareholders generally; provided that (i) any such material may be redacted by the Borrower to exclude information relating to the Loan Documents or the Lenders and (ii) the Lenders shall not be entitled to receive statements, reports and notices relating to topics that (A) are subject to attorney‑client privilege or (B) present a conflict of interest for the Lenders; provided that, so long as the Borrower is a Publicly Reporting Company, the Borrower’s filing of any such material with the SEC shall be deemed to satisfy the requirements of this Section 8.01(g) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(h) a financial forecast for the Borrower and its Subsidiaries for each fiscal year, including forecasted balance sheets, statements of income and cash flows of the Borrower and its Subsidiaries (the “Financial Plan”), all of which shall be prepared on a consolidated basis and delivered not later than February 28 of such fiscal year;
(i) within five (5) Business Days following any Lender’s written request, certification that such Obligor is not a passive foreign investment company (“PFIC”) within the meaning of Sections 1291 through 1297 of the Code, or, if such Obligor determines that it is a PFIC, such information as would allow the Lender to make a qualified electing fund election with respect to the Equity Interest of the Obligor; and
(j) so long as the Borrower is a Publicly Reporting Company, the Borrower shall within five (5) Business Days of the Borrower filing, provide access (via posting and/or links on the Borrower’s web site) to all reports on Form 10-K and Form 10-Q filed with the SEC, any Governmental Authority succeeding to any or all of the functions of the SEC or with any national securities exchange; and within five (5) Business Days of filing, provide notice and access (via posting and/or links on the Borrower’s web site) to all reports on Form 8-K filed with the SEC, and copies of (or access to, via posting and/or links on the Borrower’s web site) all other reports, proxy statements and other materials filed by the Borrower with the SEC, any Governmental Authority succeeding to any of the functions of the SEC or with any national securities exchange. Notwithstanding anything to the contrary herein, neither the Borrower nor any Subsidiary shall be required to deliver, disclose, permit the inspection, examination or making of copies of or excerpts from, or any discussion of, any document, information, or other matter (i) in respect of which disclosure to the Administrative Agent (or any Lender (or their respective representatives or contractors)) is prohibited by applicable law, (ii) that is subject to attorney-client or similar privilege or constitutes attorney work product or (iii) with respect to which any Loan Party owes confidentiality obligations (to the extent not created in contemplation of such Loan Party’s Obligations under this Section 8.01) to any third party.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentLender:
(a) as soon as available and in any event within 30 one hundred twenty (120) days after the end of each month (including Fiscal Year of the last month of each fiscal quarter)Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing consolidated balance sheet for Parent sheets of the Borrower and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and reported on by independent public accountants acceptable to the preceding fiscal yearLender (without a “going concern” or like qualification, together with a certificate exception or explanation and without any qualification or exception as to the scope of a Responsible Officer of such audit) to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within forty five (545) Business Days following days after the date on which Parent files or is required to file a Quarterly Report on Form 10end of each Fiscal Quarter of the Borrower, an unaudited, internally-Q with the SECprepared, a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income (specifying, among other things, depreciation and cash flows interest expense) of the Borrower and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in Fiscal Quarter and the preceding fiscal year, together with a certificate of a Responsible Officer corresponding portion of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, ParentBorrower’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretoprevious Fiscal Year;
(c) as soon as available and in any event within forty five (545) Business Days following days after the end of each Fiscal Quarter of the Borrower, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists a Default or Event of Default on the date on of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action which Parent files the Borrower has taken or is required proposes to file its Annual Report on Form 10-K take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the SECfinancial covenants set forth in Article VII, a consolidated balance sheet for Parent and its (iii) specifying any change in the identity of the Subsidiaries as of the end of such fiscal yearFiscal Quarter from the Subsidiaries identified to the Lender on the Closing Date or the date of the most recent Compliance Certificate, as applicable, and (v) stating whether any change in GAAP or the related consolidated statements application thereof has occurred since the Closing Date or the date of incomethe most recent Compliance Certificate, shareholders’ equity and cash flows for as applicable, and, if any change has occurred, specifying the effect of such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, change on the financial statements for accompanying such Compliance Certificate; and
(d) promptly following any request therefor, such other information regarding the fiscal years ending 2018 results of operations, business affairs and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements financial condition of the Exchange Act, Parent’s filing Borrower or any of an Annual Report on Form 10-K with its Subsidiaries as the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Atlantic American Corp)
Financial Statements and Other Information. The Except to the extent any of the following information is available publicly and electronically from the Securities and Exchange Commission, the Borrower will furnish deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 30 90 days after the end of each month (including fiscal year of Borrower, a copy of the last month of each annual audited report for such fiscal quarter)year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, fiscal year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthyear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding previous fiscal year, together with all in reasonable detail and reported on by McGladrey & Xxxxxx LLP or other independent public accountants of nationally recognized standing (without a certificate “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of a Responsible Officer of such audit) to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such fiscal year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five (5) Business Days following 45 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three fiscal quarters of each fiscal year of the Borrower, a an unaudited consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, quarter and the related unaudited consolidated statements of income, shareholders’ equity income and cash flows of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of such fiscal year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of Borrower’s previous fiscal year, accompanied all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared consolidated basis in accordance with GAAP and which shall not be GAAP, subject to any Impermissible Qualification; provided that, normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements for referred to in clauses (a) and (b) above, a certificate signed by the fiscal years ending 2018 principal executive officer and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements principal financial officer of the Exchange Act, Parent’s filing Borrower (a “Compliance Certificate”) substantially in the form attached as Exhibit 5.1(c) (i) certifying as to whether there exists a Default or Event of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with Article VI and (iii) stating whether any change in GAAP or the application thereof has occurred since the date of the Borrower’s audited financial statements referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on which the financial statements accompanying such report certificate;
(d) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(e) not less than ten (10) days prior to such change, written notice of any change (i) in any Loan Party’s corporate name, (ii) in the jurisdiction of organization or formation of any Loan Party, (iii) in any Loan Party’s identity or form of organization or (iv) in any Loan Party’s Federal Taxpayer Identification Number. The Borrower also agrees promptly to notify the Administrative Agent if any material portion of the Collateral is first available via damaged or destroyed; and
(f) promptly following any request therefor by the SEC’s XXXXX system Administrative Agent or a successor system related thereto;any Lender and subject to applicable law and regulations, such other information regarding the results of operations, business affairs and financial condition of the Borrower or any Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. (a) The Borrower will deliver to the Administrative Agent as soon as available and in any case within 120 days after the end of each Fiscal Year, consolidated financial statements for such Fiscal Year audited by independent accountants of recognized national standing, including an annual audited consolidated balance sheet and the related consolidated statements of income, changes in equity and changes in financial position, prepared in accordance with GAAP consistently applied (except as otherwise discussed in the notes to such financial statements), which financial statements shall present fairly in accordance with GAAP the financial condition of the Borrower and its Subsidiaries as at the end of the relevant Fiscal Year and the results of the operations of the Borrower and its Subsidiaries for such Fiscal Year, reported on by independent accountants of recognized national standing.
(b) The Borrower shall deliver to the Administrative Agent as soon as available and in any case within 60 days after the end of each of the first three Fiscal Quarters, unaudited consolidated financial statements for each such quarter period for the Borrower and its Subsidiaries, including therein an unaudited consolidated balance sheet and the related consolidated statements of income prepared in accordance with GAAP, consistently applied (except as otherwise discussed in the notes to such statements), which financial statements shall present fairly in accordance with GAAP the financial condition of the Borrower and its Subsidiaries as at the end of the relevant quarter and the results of the operations of the Borrower and its Subsidiaries for such quarter and for the portion of the Fiscal Year then ended except for (i) the absence of complete footnotes, (ii) normal, recurring year-end accruals, and (iii) the fact that raw corn inventories are valued at cost, rather than the lower of cost or market, and otherwise subject to normal year-end adjustments.
(c) Concurrently with the delivery of the financial statements pursuant to paragraphs (a) and (b) above, the Borrower will deliver to the Administrative Agent a Compliance Certificate signed by a Responsible Officer of the Borrower.
(d) The Borrower will furnish to the Administrative Agent:, promptly after they are publicly available, copies of all financial statements and financial reports filed by the Borrower with any Governmental Authority (if such statement or reports are required to be filed for the purpose of being publicly available) or filed with any securities exchange and which are publicly available.
(ae) as soon as available and in any event within 30 days after the end of each month (including the last month of each fiscal quarter), a consolidated balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the The Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable will furnish to the Administrative Agent, which report promptly upon request of the Administrative Agent or any Lender (through the Administrative Agent), such additional information regarding the business, financial or corporate affairs of the Borrower and opinion shall its Material Subsidiaries as the Administrative Agent or any Lender may reasonably request. Documents required to be prepared delivered pursuant to Section 6.01 (a) or (b) or Section 6.02(c) (to the extent any such documents are included in accordance materials otherwise filed with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 SEC) may be subject to an Impermissible Qualification; provided further thatdelivered electronically and if so delivered, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such report documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that; (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is first available via given by the SEC’s XXXXX system Administrative Agent or a successor system related thereto;such Lender and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Appears in 1 contract
Samples: Credit Agreement (Gruma Sa De Cv)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative Agent:Agent (who will deliver to each Lender):
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, and reported on by independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit (except any such qualification arising as a result of the impending “Maturity Date” (as defined in the Existing Lien Credit Agreement) (as a result of clause (i) of such definition), “Revolving Commitment Termination Date” (as defined in the Existing Lien Credit Agreement) (as a result of clause (i) of such definition) or Revolving Commitment Termination Date (as a result of clause (i) of such definition)) to the effect that such financial statements present fairly in all material respects the financial condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP (as in effect at the time such financial statements were prepared and subject to Section 1.3) consistently applied (except as expressly noted therein) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each Fiscal Quarter of the Borrower (other than the last Fiscal Quarter in each Fiscal Year), an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year and the corresponding figures for the Profit Plan for the current Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section, a Compliance Certificate signed by an appropriate Responsible Officer of the Borrower (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action, if any, which the Borrower has taken or proposes to take with respect thereto, (ii) if applicable, setting forth in reasonable detail calculations demonstrating compliance with the financial covenant set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the most recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (a) above, a certificate of the accounting firm that reported on such financial statements (which may be included in the opinion or other reports delivered by such accounting firm pursuant to subsection (a)) stating that, in making the examination necessary to prepare such financial statements, no knowledge was actually obtained of the occurrence and continuance of any Default or Event of Default, except as specified in such certificate (it being understood that no special or separate inquiry or review will have been made or shall be required to be made with respect to the existence of any Default or Event of Default and that such certificate shall be limited to the items that independent certified public accountants are permitted to cover in such certificates pursuant to their professional standards and customs of the profession);
(e) as soon as available and in any event within 90 days after the commencement of any Fiscal Year, a Profit Plan for such Fiscal Year;
(f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(g) promptly following any request therefor, such other reports or information including with respect to the results of operations, business affairs and financial condition of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request;
(h) deliver to the Administrative Agent (who will deliver to each private-side Lender) as soon as available and in any event within 30 days after the end of each month (including the last fiscal month of each fiscal quarter)the Borrower, a an unaudited consolidated balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, month and the related unaudited consolidated statements of income, shareholders’ equity income and cash flows of the Borrower and its Subsidiaries for such fiscal yearmonth and the then elapsed portion of such Fiscal Year, all in reasonable detail and setting forth in each case in comparative form the corresponding figures for the previous fiscal year, accompanied by Profit Plan for the current Fiscal Year; provided the Administrative Agent and the Lenders acknowledge and agree that (x) the financial statements described in this clause (h) are confidential and constitute material non-public information of the Borrower and (y) neither the Administrative Agent nor any other Lender (including any private-side Lender) shall distribute or furnish a report and opinion thereon copy of RBSM LLP all or another firm any portion of independent certified public accountants of recognized national standing reasonably acceptable the financial statements described in this clause (h) to any Lender that is not a private-side Lender other as expressly permitted under Section 10.11(iv); and
(i) deliver to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject Agent (for distribution to any Impermissible Qualification; provided that, the financial Revolving Credit Lenders) 13-week cash flow statements for within five (5) Business Days of the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so last day of each calendar week. So long as Parent the Borrower is subject required to the public reporting requirements file periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, Parentthe Borrower may satisfy its obligation to deliver the financial statements referred to in clauses (a) and (b) above by delivering the Borrower’s filing of an Annual Report on Form 10-K or 10-Q filed with the SEC shall be deemed to satisfy Securities and Exchange Commission within the requirements of this Section 8.01(capplicable time periods set forth in clauses (a) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;and (b), as applicable.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative Agent:Agent (which the Administrative Agent shall forward to each Lender):
(a) as soon as available and in any event event, in the case of the consolidated statements required hereunder only, within 30 120 days after the end of each month (including Fiscal Year of Borrower, a copy of the last month of each fiscal quarter)annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with, in the case of consolidated financial statements, all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and, in the preceding fiscal year, together with a certificate of a Responsible Officer case of the Borrower stating consolidated financial statements only, reported on by PriceWaterhouse Coopers or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of such audit, except for customary qualifications pertaining to debt maturities with respect to the Loans occurring within 12 months of such audit; provided that the auditor’s report accompanying such financial statements shall be permitted to include customary qualifications pertaining to debt maturities with respect to any Indebtedness occurring within 12 months of such audit or any potential inability to satisfy any financial maintenance covenant with respect to any Indebtedness on a future date or in a future period) to the effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five 45 days after the end of each Fiscal Quarter of the Borrower (5) Business Days following with respect to the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SECfirst three Fiscal Quarters of each Fiscal Year), a an unaudited consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements statement of income and consolidated statement of cash flows of the Borrower and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in quarter and the preceding fiscal corresponding portion of Borrower’s previous Fiscal Year (it being understood that quarterly financial statements are not required to have footnote disclosures and are subject to normal year-end adjustments);
(c) (1) as of the earlier of the date required by the DOE for annual delivery or the date actually delivered to the DOE for each calendar year, together with and in any event not later than July 1 of such calendar year, a certificate calculation of the Consolidated DOE Financial Responsibility Composite Score for the Borrower as of the end of the immediately preceding Fiscal Year, attached as an exhibit to a DOE Compliance Certificate signed by the principal executive officer and the principal financial officer of the Borrower, and (2) notice of the DOE’s calculation of the Consolidated DOE Financial Responsibility Score for the Borrower promptly, but in any event no later than the next date on which a Compliance Certificate is required to be delivered pursuant to Section 5.1(d), following receipt by the Borrower of a Responsible Officer notification from the DOE that the Consolidated DOE Financial Responsibility Score for the Borrower calculated by the DOE was less than 1.5 for any Fiscal Year;
(d) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a Compliance Certificate signed by the principal executive officer and the principal financial officer of the Borrower;
(e) within 60 days after the end of each Fiscal Year, a budget and projection of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretonext succeeding Fiscal Year;
(cf) promptly after the same become publicly available, notice of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as soon as available and the case may be;
(g) promptly upon such change, written notice of any change (i) in any event within five Loan Party’s corporate name, (5ii) Business Days in the jurisdiction of organization or formation of any Loan Party, (iii) in any Loan Party’s identity or form of organization or (iv) in any Loan Party’s Federal Taxpayer Identification Number. The Borrower agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the Uniform Commercial Code or otherwise that are required in order for the Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the date on which Parent files or is required Collateral. The Borrower also agrees promptly to file its Annual Report on Form 10-K with notify the SEC, a consolidated balance sheet for Parent and its Subsidiaries as Administrative Agent if any material portion of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied Collateral is damaged or destroyed;
(h) promptly following any request therefor (1) by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report such other information regarding the results of operations, business affairs and opinion shall be financial condition of the Borrower or any Restricted Subsidiary as the Administrative Agent or any Lender may reasonably request and (2) by the Administrative Agent or any Lender, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the PATRIOT Act or other applicable anti-money laundering laws; and
(i) to the extent there exist any Unrestricted Subsidiaries, concurrently with the financial statements delivered pursuant to Sections 5.1(a) or (b) above, as applicable, or the projections delivered pursuant to Section 5.1(e) above, a summary of pro forma adjustments (if any) necessary to eliminate the accounts of Unrestricted Subsidiaries from the financial statements delivered pursuant to Sections 5.1(a) or (b) above, as applicable or the projections delivered pursuant to Section 5.1(e) above, in each case prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein. Notwithstanding any other provision of this Agreement, Lenders and Administrative Agent acknowledge and agree that nothing in this Agreement or the other Loan Documents shall require the Borrower and its Subsidiaries (i) to disclose education records and information from such records in a manner inconsistent with the requirements of the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g (or any successor statute); its implementing regulations, 34 C.F.R. pt. 99 (or any successor regulation); applicable accreditation standards, policies, and procedures; and applicable state laws and regulations or (ii) to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that (a) constitutes non-financial trade secrets or non-financial proprietary information, (b) in respect of which shall not be subject disclosure to the Administrative Agent or any Impermissible Qualification; provided thatLender (or their respective representatives or contractors) is prohibited by any Requirement of Law, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that(c) violates any bona fide binding contractual confidentiality obligations by which it is bound, so long as Parent (I) such obligations were not entered into in contemplation of this Agreement and (II) such obligations are owed by it to a Person that is not an Affiliate or (d) is subject to attorney-client or similar privilege or constitutes attorney work product. Documents required to be delivered pursuant to Section 5.01(a), (b) or (f) (to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K extent any such documents are included in materials otherwise filed with the SEC Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to satisfy the requirements of this Section 8.01(c) have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet; or (ii) on which such report is first available via documents are posted on the SECBorrower’s XXXXX system behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a successor system related thereto;commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Strategic Education, Inc.)
Financial Statements and Other Information. The Borrower will furnish Company shall deliver to the Administrative Agent:CORESTAFF (so long as CORESTAFF holds any Stock):
(a) as soon as available but in any event within 45 days after the end of each quarterly accounting period in each Fiscal year, unaudited consolidating and consolidated statements of income and cash flows of the Company and its Subsidiaries for such quarterly period and for the period from the beginning of the fiscal year to the end of such quarter, and consolidating and consolidated balance sheets of the Company and its Subsidiaries as of the end of such quarterly period, all prepared in accordance with generally accepted accounting principles, consistently applied, subject to the absence of footnote disclosures and to normal year-end adjustments;
(b) as soon as available but in any event within 30 days after the end of each month (including the last month of in each fiscal quarter)year, a unaudited consolidating and consolidated statements of income and cash flows of the Company and its Subsidiaries for such month and for the period from the beginning of the fiscal year to the end of such month, and consolidating and consolidated balance sheet for Parent sheets of the Company and its Subsidiaries as of the end of such month, all prepared in accordance with generally accepted accounting principles, consistently applied, subject to the absence of footnote disclosures and to normal year-end adjustments;
(c) accompanying the related financial statements referred to in PARAGRAPH (a) and (b), an Officer's Certificate stating that neither the Company nor any of its Subsidiaries is in default under any of its other material agreements or, if any such default exists, specifying the nature and period of existence thereof and what actions the Company and its Subsidiaries have taken and propose to take with respect thereto;
(d) within 90 days after the end of each fiscal year, consolidating and consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent Company and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer and consolidating and consoLidated balance sheets of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent Company and its Subsidiaries as of the end of such fiscal year, setting forth in each case comparisons to the annual budget and to the related consolidated statements of income, shareholders’ equity and cash flows for such preceding fiscal year, all prepared in reasonable detail accordance with generally accepted accounting principles, consistently applied, and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and (i) with respect to the consolidated portions of such statements (except with respect to budget data), an opinion thereon containing no exceptions or qualifications (except for qualifications regarding specified contingent liabilities) of RBSM LLP or another an independent accounting firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agentholders of a majority of the Investor Common, and (ii) a copy of such firm's annual management letter to the Board;
(e) promptly upon receipt thereof, any additional reports, management letters or other detailed information concerning significant aspects of the Company's operations or financial affairs given to the Company by its independent accountants (and not otherwise contained in other materials provided hereunder);
(f) at least 30 days prior to the beginning of each fiscal year, annual budgets prepared on a monthly basis for the Company and each of its Subsidiaries (or regions) for such fiscal year (displaying anticipated statements of income and cash flows), and promptly upon preparation thereof any other significant budgets prepared by the Company and any revisions of such annual or other budgets, and within 30 days after any monthly period in which report there is a material adverse deviation from any annual budgets, an Officer's Certificate explaining the deviation and opinion what actions the Company has taken and proposes to take with respect thereto;
(g) promptly (but in any event within five business days) after the discovery or receipt of notice of any default under any material agreement to which it or any of its Subsidiaries is a party or any other event or circumstance affecting the Company or any Subsidiary which is reasonably likely to have a material adverse effect on the financial condition, operating results, assets, operations or business prospects of the Company or any Subsidiary (including the filing of any material litigation against the Company or any Subsidiary or the existence of any material dispute with any Person which involves a reasonable likelihood of such litigation being commenced), an Officer's Certificate specifying the nature and period of existence thereof and what actions the Company and its Subsidiaries have taken and propose to take with respect thereto; and
(h) with reasonable promptness, such other information and financial data concerning the Company and its Subsidiaries as any Person entitled to receive information under this SECTION 3.1 may reasonably request. Each of the financial statements referred to in PARAGRAPHS (a) and (d) shall be prepared true and correct in accordance with GAAP all material respects as of the dates and for the periods stated therein, subject in tile case of the unaudited financial statements to changes resulting from normal year-end audit adjustments (none of which shall not would, alone or in the aggregate, be subject materially adverse to any Impermissible Qualification; provided thatthe financial condition, operating results, assets, operations or business prospects of the Company and its Subsidiaries taken as a whole). Notwithstanding the foregoing, the financial statements for referred to in paragraphs (g) and (d) shall be in the fiscal years ending 2018 form of a Form 10-Q and 2019 may be subject to an Impermissible Qualification; provided further thatForm 10-K respectively, so long as Parent is the Company remains subject to the public reporting requirements of the Securities Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;.
Appears in 1 contract
Financial Statements and Other Information. The Borrower or the Parent will furnish deliver to the Canadian Administrative AgentAgent and to each Lender:
(a) as soon as available and in any event within 30 90 days after the end of each month (including fiscal year of the last month Parent, a copy of each the annual audited report for such fiscal quarter)year for the Parent and its Subsidiaries, containing a consolidated balance sheet for of the Parent and its Consolidated Subsidiaries as of the end of such month, fiscal year and the related consolidated statements of income income, stockholders' equity and cash flows (together with all footnotes thereto) of the Parent and its Consolidated Subsidiaries for such month and the portion of the fiscal year through the end of such monthyear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding previous fiscal year, together with all in reasonable detail and reported on by KPMG LLP or other independent public accountants of nationally recognized standing (without a "going concern" or like qualification, exception or explanation and without any qualification or exception as to scope of such audit), accompanied by (i) a certificate of a Responsible Officer of from such accountants to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of the Parent and its Consolidated Subsidiaries (including Space & Technology / Montreal and any other discontinued operations) for the period ended such fiscal year on such date and have been prepared a consolidated basis in accordance with GAAPGAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards and (ii) an internally prepared consolidating balance sheet and related consolidating statements of income, subject to changes resulting from normal, stockholders' equity and cash flows of the Parent and its Consolidated Subsidiaries for such fiscal year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following 45 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three fiscal quarters of each fiscal year of the Parent, a an unaudited consolidated and consolidating balance sheet for of the Parent and its Consolidated Subsidiaries as of the end of such quarter, fiscal quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Parent and its Consolidated Subsidiaries for such fiscal quarter and the then elapsed portion of the such fiscal year through the end of such quarteryear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in quarter and the preceding corresponding portion of the Parent's previous fiscal year, together with a certificate of a Responsible Officer all certified by the chief financial officer or treasurer of the Borrower stating that such financial statements Parent as presenting fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of the Parent and its Consolidated Subsidiaries for the period ended (including Space & Technology / Montreal and any other discontinued operations) on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, normal year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretofootnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) above, a certificate of the Chief Financial Officer or treasurer of the Borrower, (i) certifying as soon as available and in any event within five (5) Business Days following to whether there exists a Default or Event of Default on the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal yearcertificate, and if a Default or an Event of Default then exists, specifying the related consolidated statements of incomedetails thereof and the action which the Borrower has taken or proposes to take with respect thereto, shareholders’ equity and cash flows for such fiscal year, all (ii) setting forth in reasonable detail calculations demonstrating compliance with Article VI and setting forth (iii) stating whether any change in comparative form GAAP or the figures for application thereof has occurred since the previous fiscal yeardate of the Parent's audited financial statements referred to in Section 4.4 and, accompanied by if any change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (a) above, a report and opinion thereon certificate of RBSM LLP the accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of their examination of such financial statements of any Default or another firm Event of independent certified public accountants of recognized national standing reasonably acceptable Default (which certificate may be limited to the Administrative Agentextent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, which report copies of all periodic and opinion shall be prepared other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or with any provincial securities commission or distributed by the Parent to its shareholders generally, as the case may be;
(f) promptly after delivery to the recipient thereof, copies of all notices and financial information relating to any Consolidated Party delivered to any Person in accordance with GAAP the U.S. Revolving Credit Agreement; and
(g) promptly following any request therefor, such other information regarding the results of operations, business affairs and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements condition of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with Parent or any Subsidiary as the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system Canadian Administrative Agent or a successor system related thereto;any Lender may reasonably request.
Appears in 1 contract
Samples: Canadian Revolving Credit Agreement (Ems Technologies Inc)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative Agent:Agent (and the Administrative Agent will deliver to each Lender):
(a) as soon as available and in any event within 30 one hundred twenty (120) days after the end of each month Fiscal Year of the Loan Parties, (including i) internally prepared financial statements for such Fiscal Year for the last month of each fiscal quarter)Parent and its Subsidiaries, containing a consolidated consolidating balance sheet for of the Parent and its Subsidiaries as of the end of such monthFiscal Year and the related consolidating statements of income of the Parent and its Subsidiaries for such Fiscal Year, in each case in form consistent with such financials delivered under the Existing Credit Agreement and (ii) a copy of the annual audited report for such Fiscal Year for PubCo and its Subsidiaries, containing a consolidated balance sheet of PubCo and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of PubCo and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and reported on by KPMG LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the preceding fiscal yearscope of such audit, together with except to the extent any qualification results solely from a certificate of a Responsible Officer current maturity of the Borrower stating Loans occurring within one (1) year from the time such opinion is delivered) to the effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent PubCo and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within forty-five (545) Business Days following days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three Fiscal Quarters of each Fiscal Year of the Loan Parties, a an unaudited consolidated balance sheet for of the Parent and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income of the Parent and cash flows its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all setting forth, in reasonable detail and setting forth each case, in comparative form the figures for the corresponding period Fiscal Quarter of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section, a Compliance Certificate signed by the preceding fiscal year, together with a certificate of a Responsible Officer principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, and (iii) specifying any change in the identity of the Loan Parties as of the end of such Fiscal Year or Fiscal Quarter from the Loan Parties identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited consolidated financial statements of the Borrower and the Loan Parties to the extent that such change has an effect on the financial statements fairly present accompanying such Compliance Certificate;
(d) [reserved];
(e) within sixty (60) days after the end of each Fiscal Year, forecasts and a pro forma budget for the Fiscal Year then in all material respects progress, containing an income statement, balance sheet and statement of cash flow;
(f) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of Parent and its Subsidiaries the Borrower or any of the Loan Parties as at such date the Administrative Agent and the results of operations of Parent and its Subsidiaries for Lenders, through the period ended on such date and have been prepared in accordance with GAAPAdministrative Agent, subject may reasonably request. Documents required to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject be delivered pursuant to Section 5.1(a) or (b) (to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q extent any such documents are included in materials otherwise filed with the SEC SEC) may be delivered electronically and if so delivered, shall be deemed to satisfy the requirements of this Section 8.01(b) have been delivered on the date on which such report is first documents are posted on a publicly available via the SEC’s XXXXX system website maintained by or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as behalf of the end of such fiscal year, and SEC for access to documents filed in the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form XXXXX database (the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s “XXXXX system or a successor system related thereto;Website”).
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative Agent:
Agent and each Lender: as soon as available and in any event upon the earlier of the date that is 90 days after the end of each fiscal year of Borrower and the date that is 2 days after such information is filed with the SEC, a copy of the annual audited report for such fiscal year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and reported on by KPMG L.L.P. or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation, other than any “going concern” qualification solely pertaining to the maturity of the Revolving Commitments under this Agreement, and without any qualification or exception as to scope of such audit) to the effect that such financial statements present fairly in all material respects the financial condition and the results of operations of the Borrower and its Subsidiaries for such fiscal year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; as soon as available and in any event upon the earlier of the date that is 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower and the date that is 2 days after such information is filed with the SEC, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal quarter and the related unaudited consolidated statement of income of the Borrower and its Subsidiaries for such fiscal quarter and the related unaudited consolidated statements of income and cash flows for the then elapsed portion of such fiscal year, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of Borrower’s previous fiscal year, all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a certificate of the chief financial officer or treasurer, (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with Article VII, (iii) setting forth whether the Borrower is in compliance with Section 6.11 and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the Borrower’s most recent audited financial statements referred to in Section 5.4 or which have been previously delivered hereunder and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such certificate; as soon as available and in any event within 30 days after the end of each month (including the last month of each fiscal quarter)month, a an unaudited consolidated balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, month and the related unaudited consolidated statements of income, shareholders’ equity income of the Borrower and its Subsidiaries for such fiscal month and the then elapsed portion of the Borrower’s fiscal year and unaudited consolidated statements of cash flows for the then elapsed portion of such fiscal year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding calendar month of the Borrower’s previous fiscal year and the corresponding portion of Borrower’s previous fiscal year, all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal quarterly and year-end audit adjustments and the absence of footnotes; promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the SEC, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the Borrower or any Subsidiary and any Eligible Restaurant that constitutes a Mortgaged Property, in each case as the Administrative Agent or any Lender may reasonably request; and commencing with the Borrower’s first fiscal quarter for which the Borrower is required, and continuing for so long as the Borrower is required, pursuant to FASB Accounting Standards of Codification No. 810, as amended (“ASC 810”), or any other authoritative accounting guidance (collectively, “Authoritative Guidance”), to consolidate its Franchisees or any other less than 100% owned entity not previously required, under GAAP as in effect on the Closing Date, to be so consolidated (collectively, the “Consolidated Entities”), each set of financial statements delivered pursuant to paragraphs (a) and (b) above shall be accompanied by unaudited financial statements of the character and for the dates and periods as in said paragraphs (a) and (b) covering each of the following: the Borrower and its Subsidiaries on a report consolidated basis, before giving effect to any consolidation of the Consolidated Entities; the Consolidated Entities on a consolidated basis; and opinion thereon consolidating statements reflecting eliminations or adjustments required in order to reconcile the consolidated statements referred to in subclauses (i) and (ii) above with the consolidated financial statements of RBSM LLP the Borrower and its Subsidiaries delivered pursuant to paragraphs (a) and (b) above, setting forth in each case (commencing, in the case of the consolidation of any Consolidated Entity pursuant to Authoritative Guidance, with the Borrower’s fiscal quarter that is four fiscal quarters following such consolidation) in comparative form the figures for the corresponding periods in the previous fiscal year. Documents required to be delivered pursuant to Section 6.1 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed in Section 11.1; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided, that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by facsimile or e-mail) of the posting of any such documents and provide to the Administrative Agent by e-mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery by a Lender, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the Issuing Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another firm similar electronic system (the “Platform”) and (b) certain of independent certified the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public accountants of recognized national standing reasonably acceptable information with respect to the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that (v) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, means that the word “PUBLIC” shall appear prominently on the first page thereof; (w) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, which report the Arranger, the Issuing Bank and opinion the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws; (x) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (y) the Administrative Agent and the Arranger shall be prepared entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.” The Administrative Agent will be entitled to obtain a new Appraisal Report of all Mortgaged Property (a) at any time that an Event of Default has occurred and is continuing and (b) once, on or after the date that is six months following the Closing Date, and, in accordance each case, Borrower shall, and shall cause its Subsidiaries to, cooperate with GAAP the Administrative Agent and which the applicable Acceptable Appraiser in obtaining such new Appraisal Report (including, without limitation, by allowing access to such Mortgaged Property during normal business hours). If Administrative Agent receives any Appraisal Report pursuant to clause (b) of the preceding sentence that causes the Required Appraised Value Covenant Level to no longer be satisfied, Administrative Agent shall not be subject to any Impermissible Qualification; provided thatprovide Borrower with a copy of such Appraisal Report and notice that the provisions of Section 7.1 hereto are no longer satisfied (such notice, the financial statements “Appraisal Notice”) within 5 days of receipt of such Appraisal Report by the Administrative Agent. The expenses of procuring any such new Appraisal Report shall be for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to account of (i) in the public reporting requirements case of clause (a) of the Exchange Actimmediately preceding sentence, Parent’s filing the Borrower and (ii) in the case of an Annual Report on Form 10-K with clause (b) of the SEC shall be deemed to satisfy immediately preceding sentence, the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Administrative Agent.
Appears in 1 contract
Financial Statements and Other Information. The Borrower Parent will furnish to the Administrative AgentAgent for delivery to the Lenders:
(a) as soon as available and available, but in any event within 30 no later than the later of (x) 90 days after the end of each month fiscal year of the Parent and (including y) the last month second Business Day after the date the financial statements for the Parent and its Subsidiaries referred to in clause (i) below are required to be filed with the Securities and Exchange Commission:
(i) consolidated statements of each operations and comprehensive loss and cash flows of the Parent and its Subsidiaries for such fiscal quarter), a year and the related consolidated balance sheet for sheets of the Parent and its Subsidiaries as of at the end of such monthfiscal year, setting forth in each case in comparative form the corresponding consolidated figures for the preceding fiscal year,
(ii) an opinion of independent certified public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that said consolidated financial statements referred to in the preceding clause (i) fairly present in all material respects the consolidated financial condition and results of operations of the Parent and its Subsidiaries as at the end of, and for, such fiscal year in accordance with generally accepted accounting principles, and
(iii) a statement of adjustments necessary to exclude the effect of that portion of the components of EBITDA, Indebtedness and interest attributable to Project Entities from the foregoing financial statements, certified by a Financial Officer;
(b) as soon as available, but in any event no later than the later of (x) 50 days after the end of each of the first three fiscal quarters of the Parent and (y) the second Business Day after the date the financial statements for the Parent and its Subsidiaries referred to in clause (i) below are required to be filed with the Securities and Exchange Commission:
(i) consolidated statements of operations and comprehensive loss, shareholders’ equity (deficit) and cash flows of the Parent and its Subsidiaries for the period from the beginning of the respective fiscal year to the end of such period, and the related consolidated statements of income and cash flows for such month and the portion balance sheets of the fiscal year through Parent and its Subsidiaries as at the end of such monthperiod, all in reasonable detail and setting forth in each case in comparative form the corresponding consolidated figures for the corresponding period in the preceding fiscal yearyear (except that, together with a certificate in the case of a Responsible Officer balance sheets, such comparison shall be to the last day of the Borrower stating prior fiscal year),
(ii) a certification made on behalf of the Parent by a Financial Officer to the effect that such financial statements fairly present in all material respects the financial condition condition, results of operations and cash flows of the Parent and its Subsidiaries on a consolidated basis as at such date of and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared periods presented in accordance with GAAPGAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notesfootnotes, and
(iii) a statement of adjustments necessary to exclude the effect of that portion of the components of EBITDA, Indebtedness and interest attributable to Project Entities from the foregoing financial statements, certified by a Financial Officer;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer (i) stating, to the best of his or her personal knowledge, information and belief after due inquiry, whether a Default has occurred and, if a Default known to him or her has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 8.01, 8.02, 8.04, 8.05, 8.06, 8.07 and 8.09, (iii) setting forth a calculation, in form and detail reasonably satisfactory to the Administrative Agent, of any pro forma adjustments to EBITDA and Interest Expense described in the last paragraphs of the definitions of such terms in Section 1.01 and (iv) stating whether any material change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 5.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) as soon as available and in any event within five (5) Business Days 90 days after the beginning of each fiscal year of the Parent following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SECEffective Date, a consolidated balance sheet for Parent and its Subsidiaries as an annual operating budget (setting forth an itemization of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(bprincipal assumptions relating thereto) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year;
(e) promptly after the same become publicly available, copies of all in reasonable detail registration statements, regular periodic reports and setting forth in comparative form press releases filed by the figures for Parent or any of its Subsidiaries with the previous fiscal yearSecurities and Exchange Commission, accompanied by a report and opinion thereon or any Governmental Authority succeeding to any or all of RBSM LLP the functions of said Commission, or another firm of independent certified public accountants of recognized with any national standing reasonably acceptable securities exchange;
(f) promptly upon the mailing thereof to the shareholders of the Parent generally, copies of all financial statements, reports and proxy statements so mailed; and
(g) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Group Member, or compliance with the terms of this Agreement, as the Administrative AgentAgent or any Lender may reasonably request; provided, which report and opinion shall be prepared in accordance with GAAP and which shall that the Group Members will not be subject required to any Impermissible Qualification; provided that, the deliver confidential information consisting of trade secrets or other proprietary or competitively sensitive information not constituting financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;information.
Appears in 1 contract
Financial Statements and Other Information. The Borrower Issuer will furnish deliver to the Administrative Agenteach Purchaser:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Issuer, a copy of the annual audited report for such Fiscal Year for the Issuer and its Subsidiaries, containing a consolidated balance sheet of the Issuer and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Issuer and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, and reported on by independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit (except any such qualification arising as a result of the impending Maturity Date (as a result of clause (i) of such definition) or “Maturity Date” (as defined in the Second Lien Note Purchase Agreement) (as a result of clause (i) of such definition)) to the effect that such financial statements present fairly in all material respects the financial condition and the results of operations of the Issuer and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP (as in effect at the time such financial statements were prepared and subject to Section 1.3) consistently applied (except as expressly noted therein) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each Fiscal Quarter of the Issuer (other than the last Fiscal Quarter in each Fiscal Year), an unaudited consolidated balance sheet of the Issuer and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Issuer and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of the Issuer’s previous Fiscal Year and the corresponding figures for the Profit Plan for the current Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) of this Section, a Compliance Certificate signed by an appropriate Responsible Officer of the Issuer (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action, if any, which the Issuer has taken or proposes to take with respect thereto, (ii) if applicable, setting forth in reasonable detail calculations demonstrating compliance with the financial covenant set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Purchasers on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the most recently delivered audited financial statements of the Issuer and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in clause (a) above, a certificate of the accounting firm that reported on such financial statements (which may be included in the opinion or other reports delivered by such accounting firm pursuant to clause (a)) stating that, in making the examination necessary to prepare such financial statements, no knowledge was actually obtained of the occurrence and continuance of any Default or Event of Default, except as specified in such certificate (it being understood that no special or separate inquiry or review will have been made or shall be required to be made with respect to the existence of any Default or Event of Default and that such certificate shall be limited to the items that independent certified public accountants are permitted to cover in such certificates pursuant to their professional standards and customs of the profession);
(e) as soon as available and in any event within 90 days after the commencement of any Fiscal Year, a Profit Plan for such Fiscal Year;
(f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Issuer to its shareholders generally, as the case may be;
(g) promptly following any request therefor, such other reports or information including with respect to the results of operations, business affairs and financial condition of the Issuer or any of its Subsidiaries as the Collateral Agent or any Purchaser may reasonably request; and
(h) until Consolidated EBITDA for the period of four Fiscal Quarters ending on the last day of the most recent Fiscal Quarter for which financial statements have been (or were required to be) delivered hereunder exceeds $45,000,000, deliver to each private-side Purchaser as soon as available and in any event within 30 days after the end of each month (including the last fiscal month of each fiscal quarter)the Issuer, a an unaudited consolidated balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent Issuer and its Subsidiaries as of the end of such fiscal year, month and the related unaudited consolidated statements of income, shareholders’ equity income and cash flows of the Issuer and its Subsidiaries for such fiscal yearmonth and the then elapsed portion of such Fiscal Year, all in reasonable detail and setting forth in each case in comparative form the corresponding figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to Profit Plan for the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualificationcurrent Fiscal Year; provided that, the Purchasers acknowledge and agree that (x) the financial statements for described in this clause (h) are confidential and constitute material non-public information of the fiscal years ending 2018 Issuer and 2019 may be subject (y) no Purchaser (including any private-side Purchaser) shall distribute or furnish a copy of all or any portion of the financial statements described in this clause (h) to an Impermissible Qualification; provided further that, so any Purchaser that is not a private-side Purchaser other as expressly permitted under Section 10.11(iv). So long as Parent the Issuer is subject required to the public reporting requirements file periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, Parentthe Issuer may satisfy its obligation to deliver the financial statements referred to in clauses (a) and (b) above by delivering the Issuer’s filing of an Annual Report on Form 10-K or 10-Q filed with the SEC shall be deemed to satisfy Securities and Exchange Commission within the requirements of this Section 8.01(capplicable time periods set forth in clauses (a) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;and (b), as applicable.
Appears in 1 contract
Samples: First Lien Note Purchase Agreement (BioScrip, Inc.)
Financial Statements and Other Information. The Borrower will furnish to the Administrative AgentAgent for distribution to the Lenders:
(a) commencing with the fiscal quarter ended March 31, 2020, as soon as available and in any event within 30 forty-five (45) days after the end of each month (including the last month of each fiscal quarter), a the consolidated balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer sheets of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent the Borrower and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended on such date and have been prepared substantially in accordance with GAAPGAAP consistently applied, subject to changes resulting from normal, normal quarterly or year-end audit adjustments and except for the absence of notesfootnotes; provided that, so long as Parent if Borrower is subject to the public reporting requirements of the Exchange Acta Publicly Reporting Company, ParentBorrower’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(a) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(b) as soon as available and in any event within ninety (90) days after the end of each fiscal year, the consolidated balance sheets of the Borrower and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows of the Borrower and its Subsidiaries for such fiscal year, prepared substantially in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of Ernst & Young LLP or another firm of independent certified public accountants of recognized national standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit; provided that, if Borrower is a Publicly Reporting Company, Borrower’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) within thirty (30) days after the end of each month, a compliance certificate of a Responsible Officer of the Borrower as soon of the end of the applicable accounting period (which delivery may, unless a Lender requests executed originals, be by electronic communication including email and shall be deemed to be an original authentic counterpart thereof for all purposes) in the form of Exhibit D (a “Compliance Certificate”) which, for purposes of clarification, shall (i) demonstrate the Borrower’s compliance with Section 8.15 in respect of such month, (ii) state that the representations and warranties made by the Obligors in Article 7 are true in all material respects on and as available of the date thereof; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects, (iii) include details of any issues that are material that are raised by auditors, (iv) for each month end that coincides with the end of a fiscal quarter of the Borrower, demonstrate the Borrower’s compliance with Section 8.16 in respect of such fiscal quarter and (v) for each month end that coincides with the end of a fiscal year of the Borrower, provide updated Schedules to this Agreement (if any);
(d) promptly, and in any event within five ten (510) Business Days after receipt thereof by an Obligor thereof, copies of each notice or other correspondence received from any securities regulator or exchange to the authority of which an Obligor is subject concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of such Obligor;
(e) upon any renewal or replacement, the information regarding insurance maintained by Obligors as required under Section 8.05;
(f) promptly following the date on which Parent files Lenders’ written request at any time, proof of compliance with Section 8.15;
(g) within ten (10) days of delivery, copies of all periodic reports distributed by the Borrower to its shareholders generally; provided that (i) any such material may be redacted by the Borrower to exclude information relating to the Loan Documents or is required the Lenders and (ii) the Lenders shall not be entitled to file its Annual Report on Form 10receive statements, reports and notices relating to topics that (A) are subject to attorney-K with client privilege or (B) present a conflict of interest for the SEC, Lenders;
(h) a consolidated balance sheet financial forecast for Parent Borrower and its Subsidiaries as for each fiscal year, including forecasted balance sheets, statements of the end income and cash flows of Borrower and its Subsidiaries, all of which shall be prepared on a consolidated basis and delivered not later than February 28 of such fiscal yearyear (the “Financial Forecast”);
(i) promptly following any Lender’s written request, certification that such Obligor is not a passive foreign investment company (“PFIC”) within the meaning of Sections 1291 through 1297 of the Code, or, if such Obligor determines that it is a PFIC, such information as would allow the Lender to make a qualified electing fund election with respect to the stock of the Obligor;
(j) such other information respecting the operations, properties, business or condition (financial or otherwise) of the Obligors (including with respect to the Collateral) as the Lenders may from time to time reasonably request, including, without limitation, projected financial statements of the Borrower and its Subsidiaries;
(k) promptly after the receipt thereof, a copy of any “management letter” received from its certified public accounts and the related consolidated statements management’s response thereto; and
(l) promptly after receipt or providing thereof, copies of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon any notice of RBSM LLP an event of default received from or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject provided to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements lenders in respect of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this any Indebtedness permitted under Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;9.01(l).
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative Agent:
(a) as soon as available and in any event within 30 ninety (90) days after the end of each month (including fiscal year of Borrower, a copy of the last month of each annual audited report for such fiscal quarter)year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, fiscal year and the related consolidated statements of income income, stockholders' equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthyear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding previous fiscal year, together with all in reasonable detail and reported on by independent public accountants of nationally recognized standing (without a certificate of a Responsible Officer of "going concern" or like qualification or exception, and without any qualification or exception not acceptable to Lenders in their sole discretion) to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such fiscal year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within forty-five (545) Business Days following days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three (3) fiscal quarters of each fiscal year of the Borrower, a an unaudited consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, quarter and the related unaudited consolidated statements of income, shareholders’ equity income and cash flows of the Borrower and its Subsidiaries for such fiscal quarter and the then elapsed portion of such fiscal year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of Borrower's previous fiscal year, accompanied all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared consolidated basis in accordance with GAAP and which shall not be GAAP, subject to any Impermissible Qualification; provided that, normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements for the fiscal years ending 2018 referred to in clauses (a) and 2019 may be subject (b) above, (i) a certificate of a Responsible Officer, (A) certifying as to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements whether there exists a Default or Event of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto and (B) stating whether any change in GAAP or the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 4.4 ----------- and, if any change has occurred, specifying the effect of such change on which the financial statements accompanying such report is first available via certificate, and (ii) a certificate of a Responsible Officer in the SEC’s XXXXX system form of Exhibit 5.1(c) (the "Compliance Certificate") ----------- - setting forth in reasonable detail calculations demonstrating compliance with Article VI; ----------
(d) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or a successor system related thereto;any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(e) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the Borrower or any Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 30 90 days after the end of each month (including Fiscal Year of the last month Borrower, a copy of each fiscal quarter)the annual audit report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding fiscal yearprevious Fiscal Year (without qualification as to scope of audit or any going concern explanation or limitation), together with accompanied by a certificate of a Responsible Officer of from the Borrower Borrower’s certified public accountant stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following 45 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each Fiscal Quarter of the SECBorrower, a an unaudited consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date quarter and the results corresponding portion of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, ParentBorrower’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretoprevious Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a Compliance Certificate signed by the chief financial officer or treasurer or controller of the Borrower (a) certifying as soon to the accuracy of such financial statements, (b) certifying as available and in any event within five (5) Business Days following to whether there exists a Default or Event of Default on the date of such certificate, and if a Default or an Event of Default exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (c) setting forth in reasonable detail calculations, made consistent with the terms of this Agreement and otherwise using customary methods, demonstrating compliance with the financial covenants and (d) stating whether any change in the application of GAAP has occurred since the date of the Borrower’s audited financial statements delivered in connection with the closing, and, if any change has occurred, specifying the effect of such change on which Parent files the financial statements accompanying such certificate; and
(d) promptly following any reasonable request therefor, such other information regarding the results of operations, business affairs and financial condition of the Borrower or any Subsidiary as the Administrative Agent or any Lender may reasonably request. So long as the Borrower is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as periodic reports under Section 13(a) or Section 15(d) of the end Securities Exchange Act of such fiscal year1934, and as amended, the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable Borrower’s obligation to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, deliver the financial statements for referred to in clauses (a) and (b) shall be deemed satisfied upon the fiscal years ending 2018 filing of such financial statements in the XXXXX system and 2019 may be subject the giving by the Borrower of notice to an Impermissible Qualification; provided further that, so long the Lenders and the Administrative Agent as Parent is subject to the public reporting requirements availability of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;financial statements from such source.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will shall furnish or cause to the Administrative Agentbe furnished to each Credit Party:
(a) as soon as available and available, but in any event within 30 60 days after the end of each month (including fiscal year of the last month of each fiscal quarter)Borrower, a consolidated balance sheet for Parent copy of its Statement of Assets and its Subsidiaries Liabilities as of at the end of such monthfiscal year, and together with the related consolidated statements Schedule of income Investments and cash flows for such month Statements of Operations and the portion Changes in Net Assets as of the fiscal year and through the end of such monthfiscal year; each such Statement of Assets and Liabilities and the related Schedule of Investments and Statements of Operations and Changes in Net Assets shall be certified without qualification by independent public accountants, all which certification shall (i) state that the examination by such independent public accountants in reasonable detail connection with such financial statements has been made in accordance with those auditing standards required by the ICA and setting forth in comparative form prescribed by the figures SEC for the corresponding period Borrower or, to the extent not so required or prescribed, generally accepted auditing standards in the preceding fiscal year, together with a certificate United States and (ii) include the opinion of a Responsible Officer of the Borrower stating such independent public accountants that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance conformity with GAAPApplicable Accounting Principles, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notesas otherwise specified in such opinion;
(b) as soon as available and available, but in any event within five (5) Business Days following 60 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of the SECfirst semiannual accounting period in each fiscal year of the Borrower, a consolidated balance sheet for Parent copy of the Borrower’s Statement of Assets and its Subsidiaries Liabilities as of at the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal yearsemiannual period, together with a certificate the related Schedule of a Responsible Officer Investments and Statements of the Borrower stating that Operations and Changes in Net Assets for such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretoperiod;
(c) as soon as available and available, but in any event within five not later than 45 days after the end of each quarterly accounting period in each fiscal year of the Borrower, the Borrower shall deliver to the Administrative Agent a duly completed certificate of a duly authorized representative (5who shall be acceptable to the Administrative Agent) of the Borrower, substantially in the form of Exhibit G hereto;
(d) as soon as available, but in any event not later than seven (7) days after the end of each calendar month, the Borrower shall deliver to the Administrative Agent a duly completed certificate of a duly authorized representative (who shall be acceptable to the Administrative Agent) of the Borrower, substantially in the form of Exhibit G hereto;
(e) on or before the third Business Days following Day of each week, a weekly covenant compliance certificate in substantially the date on form of Exhibit J attached with respect to the immediately preceding calendar week, signed by a duly authorized representative of the Borrower (which Parent files or is required certificate shall include calculations (which calculations shall be in substantially the same detail as provided by the Borrower pursuant to file its Annual Report on Form 10-K Section 5.01(e)(viii) of the Existing Credit Agreement and otherwise in form and substance reasonably satisfactory to the Administrative Agent) of the Borrower’s compliance with the SEC, a consolidated balance sheet for Parent Minimum Borrowing Base Requirement and its Subsidiaries Minimum Asset Coverage Requirement as of the end of the last Business Day of such fiscal yearcalendar week, and shall identify each third party provider of Asset Value);
(f) prompt written notice of any contest referred to in Sections 6.5 or 6.6;
(g) as soon as practicable, a copy of each general mailing to the related consolidated statements shareholders of incomethe Borrower to the extent such mailing includes a Prospectus or any material change in the terms thereof, shareholders’ equity and cash flows for such fiscal yearincluding any material change in the investment objectives or any change in (i) its Fundamental Policies, (ii) limitations on borrowings, or (iii) the identity of the directors, trustees, executive officers or other similar Person of the Borrower or its Investment Adviser;
(h) promptly after the execution or filing thereof, as applicable, copies of all material amendments or other material changes to its Fundamental Policies, its Organization Documents, all investment advisory or investment management contracts, and any new investment advisory or investment management contracts entered into after the Effective Date;
(i) prompt written notice in reasonable detail and setting forth in comparative form the figures for event that the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable Borrower decides to seek the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements approval of the Exchange ActBoard or, Parent’s filing if necessary, its shareholders to effect a change in any of an Annual Report on Form 10-K with the SEC shall be deemed its Fundamental Policies; and
(j) promptly after request therefor, such other information as any Credit Party may reasonably request from time to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;time.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent:
(a) as soon as available and in any event within 30 days after the end of each month (including the last month of each fiscal quarter), a consolidated balance sheet for Parent the Borrower and its Subsidiaries as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent the Borrower and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent the Borrower files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent the Borrower and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent the Borrower and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent the Borrower is subject to the public reporting requirements of the Exchange Act, Parentthe Borrower’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent the Borrower files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent the Borrower and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Deposit Account shall, on and after the Closing Date (or such later date as agreed to by the Administrative AgentAgent in its reasonable discretion), which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Controlled Account).
Appears in 1 contract
Samples: Forbearance Agreement and Second Amendment to Credit Agreement and Guaranty (Icagen, Inc.)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentAgent for delivery by the Administrative Agent to each Lender:
(a) as soon as available and in any event within 30 90 days after the end of each month Fiscal Year of Borrower (including or 120 days with respect to the last month of each fiscal quarterFiscal Year ending December 31, 2016), a copy of the annual audited report for such Fiscal Year for the Borrower and its Restricted Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Restricted Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Restricted Subsidiaries for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and Fiscal Year setting forth in comparative form the figures for the corresponding period previous Fiscal Year, to the extent available, and in each case in reasonable detail and reported on by Deloitte & Touche LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of such audit (other than with respect to, an exception or qualification solely resulting from (x) the preceding fiscal year, together with a certificate impending maturity of a Responsible Officer of any Indebtedness or (y) any prospective or actual default under any financial covenant)) to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries Restricted Subsidiaries, as the case may be, for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five (5) Business Days following 60 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three Fiscal Quarters of each Fiscal Year, a an unaudited consolidated balance sheet for Parent of the Borrower and its Restricted Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Restricted Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period quarter and the corresponding portion of Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a Compliance Certificate specifying any change in the preceding fiscal year, together with a certificate of a Responsible Officer identity of the Borrower stating that Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Lenders on the Closing Date and on any previous Compliance Certificate or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, including any change with respect to the designation of any Subsidiary as a Restricted Subsidiary or an Unrestricted Subsidiary;
(d) concurrently with any delivery of financial statements fairly present under paragraphs (a) and (b) above, management discussion and analysis reports which shall include but shall not be limited to a description in all material respects narrative form of the Borrower’s business, operations and financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notesresults; provided that, so long as Parent after a Qualified IPO, after the consummation of an IPO, the Borrower shall only be required to deliver such management’s discussion and analysis that is subject to consistent with the financial disclosure requirements imposed by law or regulation on a public reporting requirements of company; and if the Exchange Actforegoing shall be included in any periodic and other reports, Parent’s filing of a Quarterly Report on Form 10-Q proxy statements and other materials filed with the SEC Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be, then any such filing shall be deemed to satisfy the requirements of requirement for delivery under this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretoclause (d);
(ce) as soon as available and in any event within five 45 days after the end of the Fiscal Year, a pro forma budget for the succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow;
(5f) Business Days [reserved]; and
(g) promptly following any request therefor, such other information regarding the date on which Parent files results of operations, business affairs and financial condition of the Borrower or is required any Subsidiary as the Administrative Agent (or any Lender through the Administrative Agent) may reasonably request. Notwithstanding the foregoing, (i) the obligations in Sections 5.1(a), (b) and (d) may be satisfied with respect to file its Annual Report on financial information of the Borrower and the Restricted Subsidiaries by furnishing (I) the applicable financial statements of the Borrower (or any direct or indirect parent of the Borrower) or (II) the Borrower’s (or any direct or indirect parent thereof), as applicable, Form 10-K or 10-Q, as applicable filed with the SEC, a consolidated balance sheet for Parent ; and its Subsidiaries as of (ii) in no event shall the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting requirements set forth in comparative form Section 5.1(g) require the figures for the previous fiscal yearBorrower or any of its Restricted Subsidiaries to provide any such information which (1) constitutes non-financial trade secrets or non-financial proprietary information, accompanied by a report and opinion thereon (2) in respect of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable which disclosure to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to Agent or any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent Lender (or their respective representatives or contractors) is prohibited by Law or (3) is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10attorney-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system client or a successor system related thereto;similar privilege or constitutes attorney work-product.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish Except as otherwise ------------------------------------------ set forth below in this Section 2.1, until the Company is subject to the Administrative Agentreporting requirements of the 1934 Act, the Company will deliver to each Major Holder:
(a) as soon as available and available, but in any event within 30 days days, after the end of each month (including the last month of quarterly accounting period in each fiscal year, unaudited consolidated statements of operations and cash flows of the Company and its subsidiaries for such quarterly period and for the period from the beginning of the fiscal year to the end of such quarter), a and consolidated balance sheet for Parent sheets of the Company and its Subsidiaries subsidiaries as of the end of such monthquarterly period, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form each case comparisons to the figures for annual budget and to the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that all such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been to be prepared in accordance with GAAPgenerally accepted accounting principles, subject to changes resulting from normal, year-end audit adjustments and consistently applied (except for the absence of notesnotes and subject to normal year-end audit adjustments);
(b) as soon promptly as available and possible, but in any event within five (5) Business Days following 90 days, after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each fiscal year, consolidated statements of operations and cash flows of the SECCompany and its subsidiaries for such fiscal year, and a consolidated balance sheet for Parent and statement of stockholders' equity of the Company and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries subsidiaries as of the end of such fiscal year, setting forth comparisons to the annual budget and to the related consolidated statements of income, shareholders’ equity and cash flows for such preceding fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP generally accepted accounting principles, consistently applied, and accompanied by an unqualified opinion (except for qualifications regarding specified contingent liabilities) of an independent accounting firm selected by the Company's Board of Directors;
(c) prior to the end of each fiscal year, an annual budget (approved by the Board of Directors) prepared on a monthly, consolidated basis for the Company and its subsidiaries for the succeeding fiscal year (displaying detailed anticipated statements of operations and cash flows and balance sheets), and promptly upon preparation thereof any other significant budgets which shall the Company prepares and any revisions of such annual or other budgets;
(d) promptly (and in any event within 30 days) after the discovery or receipt of notice of any event or circumstance affecting the Company or its subsidiaries that is determined in good faith by the Company to be material to the Company and its subsidiaries, taken as a whole, including, but not limited to, the filing of any material litigation against the Company or its subsidiaries, acquisitions, mergers, substantial sales of assets, significant regulatory or legal developments, the commencement of voluntary or involuntary bankruptcy proceedings, natural or other disasters, significant changes in management or directors, changes in auditors, and execution or termination of, or defaults under, material contracts, a letter from the Chief Executive Officer or Chief Financial Officer of the Company specifying the nature and period of existence thereof and, in the case of material litigation, what actions the Company and its subsidiaries have taken and propose to take with respect thereto;
(e) promptly after transmission thereof, copies of all financial statements, proxy statements, reports and any other written communications which the Company sends to its stockholders generally and copies of all registration statements and all regular, special or periodic reports which it files with the SEC or with any securities exchange on which any of its securities are then listed, and copies of all press releases and other statements made available generally by the Company to the public;
(f) a notice specifying the terms of all sales of the Company's securities, promptly following the consummation thereof;
(g) within fifteen (15) days after the end of each month, an income statement for such month and a balance sheet of the Company for and as of the end of such month, together with such other business and financial data as may be subject reasonably requested by each Investor; and
(h) notice of the effectiveness under the Act of the registration covering the Company's IPO, such notice to any Impermissible Qualification; be provided that, by telecopier immediately following the SEC's notification to the Company of such effectiveness. Each of the financial statements referred to in this Section 2.1 shall be true and correct in all material respects and shall fairly present the Company's consolidated financial position and results of operations as of the dates and for the fiscal years ending 2018 and 2019 may periods stated therein, subject in the case of the unaudited financial statements to changes resulting from normal year-end audit adjustments (none of which would, alone or in the aggregate, be subject materially adverse to an Impermissible Qualification; provided further thatthe Company's financial condition, so long as Parent operating results or business prospects). The Company's obligation to provide to the Major Holders the materials described in Subsection (e) above will continue after the Company is subject to the public reporting requirements of the Exchange 1934 Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;.
Appears in 1 contract
Samples: Investors' Rights Agreement (Somnus Medical Technologies Inc)
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 30 90 days after the end of each month (including Fiscal Year of the last month Borrower, a copy of each fiscal quarter)the annual audited report for such Fiscal Year for the Borrower, containing a consolidated balance sheet for Parent and its Subsidiaries of the Borrower as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in the preceding fiscal year, reasonable detail and together with a certificate report by BDO USA, LLP or other independent public accountants of nationally recognized standing (without a Responsible Officer “going concern” qualification, exception or explanation and without any qualification or exception as to the scope of the Borrower such audit) stating that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries the Borrower for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five 45 days (5or, with respect to the Fiscal Quarters ending September 30, 2023, March 31, 2024 and June 30, 2024, 60 days) Business Days following after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each Fiscal Quarter of the SECBorrower (other than the fourth Fiscal Quarter of each Fiscal Year), a an unaudited consolidated balance sheet for Parent and its Subsidiaries of the Borrower as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in Fiscal Quarter and the preceding fiscal year, together with a certificate of a Responsible Officer corresponding portion of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, ParentBorrower’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretoprevious Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) as soon as available and in any event within five 60 days after the end of the calendar year, forecasts and a pro forma budget for the succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow;
(5e) Business Days promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(f) [reserved];
(g) promptly following any request therefor, (i) such other information regarding the date on which Parent files results of operations, business affairs and financial condition of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the Patriot Act or other applicable anti-money laundering laws. So long as the Borrower is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP periodic reports under Section 13(a) or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements Section 15(d) of the Exchange Act, Parent’s the Borrower may satisfy its obligation to deliver the financial statements and periodic and other reports, proxy statements and other materials referred to in clauses (a), (b) and (e) above by delivering a notice of filing of an Annual Report such financial statements and periodic and other reports, proxy statements and other materials by electronic mail to such e-mail addresses as the Administrative Agent shall have provided to the Borrower from time to time. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and each Issuing Bank materials and/or information provided by or on Form 10behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on the Platform and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-K public information with respect to the SEC Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to satisfy have authorized the requirements Administrative Agent, the Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of this United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute confidential information, they shall be treated as set forth in Section 8.01(c10.12); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Platform not designated “Public Side Information”.
Appears in 1 contract
Financial Statements and Other Information. The REIT Guarantor and the Borrower will furnish deliver to the Administrative AgentAgent (for distribution to each Lender) prompt written notice of the following:
(a) as soon as available not later than ten (10) days following the filing of the REIT Guarantor’s Form 10-K with the Securities and Exchange Commission, and in any event within 30 ninety (90) days after the end of each month (including Fiscal Year of the last month REIT Guarantor, a copy of each fiscal quarter)the annual audited report for such Fiscal Year for the REIT Guarantor and its Subsidiaries, containing a consolidated balance sheet for Parent of the REIT Guarantor and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the REIT Guarantor and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and reported on by independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the preceding fiscal year, together with a certificate scope of a Responsible Officer such audit (other than any “going concern” or similar qualification or exception related to the maturity of the Borrower stating Obligations, the Senior Notes or any other Indebtedness not prohibited hereunder)) to the effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the REIT Guarantor and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five not later than ten (510) Business Days days following the date on which Parent files or is required to file a Quarterly Report on filing of the REIT Guarantor’s Form 10-Q with the SECSecurities and Exchange Commission, a and in any event within sixty (60) days after the end of each Fiscal Quarter of each of the first three (3) Fiscal Quarters of each Fiscal Year of the REIT Guarantor (or if the REIT Guarantor is not required to file periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, then sixty (60) days after the end of each of the first three (3) Fiscal Quarters in each Fiscal Year), an unaudited consolidated balance sheet for Parent of the REIT Guarantor and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income of the REIT Guarantor and cash flows its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of the REIT Guarantor’s previous Fiscal Year;
(c) within sixty (60) days after the end of each of the first three (3) Fiscal Quarters of each Fiscal Year of the REIT Guarantor and no later than ninety (90) days after the end of the fourth (4th) Fiscal Quarter of each Fiscal Year of the REIT Guarantor, (i) a schedule setting forth, for the four (4) Fiscal Quarter period ending on the last date of such Fiscal Quarter, (A) the aggregate Adjusted NOI for all Real Property Assets that are Borrowing Base Assets for each category of facilities set forth in the preceding fiscal yeardefinition of Capitalization Rate; (B) the aggregate Net Revenues for all Real Property Assets that are Borrowing Base Assets for each category of facilities set forth in the definition of Capitalization Rate; (C) the Adjusted NOI for each Real Property Asset that is a Borrowing Base Asset; and (D) the Net Revenues with respect to each Borrowing Base Asset; and (ii) the amount of the annual rent payable by each Eligible Tenant with respect to each Borrowing Base Asset (other than any Multi-Tenant Buildings and Subsidiary Operated Facilities (with such Adjusted NOI, together such Net Revenues and such rent payments to be determined in a manner consistent with Adjusted NOI, Net Revenues and rent payments set forth in the Borrowing Base Deliverables with respect to the applicable Borrowing Base Asset);
(d) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section, a certificate of a Responsible Officer Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower stating (i) certifying that such financial statements fairly present in all material respects the financial condition condition, results of Parent operations, shareholders’ equity and cash flows of REIT Guarantor and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared a consolidated basis in accordance with GAAP, in the case of quarterly financial statements subject only to changes resulting from normal, normal year-end audit adjustments and except for the absence of notes; provided thatfootnotes, so long (ii) certifying as Parent is subject to the public reporting requirements whether there exists a Default or Event of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) Default on the date on of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action which such report the Borrower has taken or proposes to take with respect thereto, (iii) setting forth in reasonable detail calculations demonstrating whether the Borrower is in compliance with the financial covenants set forth in Article VI (beginning with the first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days full Fiscal Quarter following the date on which Parent files or is required to file its Annual Report on Form 10-K with Closing Date), (iv) specifying any change in the SEC, a consolidated balance sheet for Parent and its identity of the Subsidiaries as of the end of such fiscal Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (v) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the REIT Guarantor and its Subsidiaries that impacts such financial statements, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(e) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section, (i) a Borrowing Base Certificate calculated as of the end of the immediately prior Fiscal Quarter, duly completed and executed by a Responsible Officer of the Borrower or the REIT Guarantor; provided, however, the Borrower may, at its option, provide an updated Borrowing Base Certificate more frequently than quarterly; and (ii) a Rent Coverage Ratio calculation concerning each of the Borrowing Base Assets with respect to which Ensign is the Eligible Tenant under the applicable Borrowing Base Lease;
(f) within sixty (60) days after the end of the calendar year, (i) a budget for REIT Guarantor and its Subsidiaries for the related consolidated statements succeeding Fiscal Year, containing a projected income statement, balance sheet and statement of income, shareholders’ equity and cash flows and (ii) a projected operating statement for each Real Property Asset that is a Borrowing Base Asset;
(g) [Reserved];
(h) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the REIT Guarantor or the Borrower to its equityholders generally, as the case may be;
(i) promptly following any reasonable request therefor, such fiscal year, all in reasonable detail and setting forth in comparative form other information with respect to the figures for Real Property Assets and/or the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP Borrowing Base Assets as the Administrative Agent or another firm of independent certified public accountants of recognized national standing reasonably acceptable to any Lender through the Administrative Agent, which report may reasonably request and opinion as is reasonably available to the REIT Guarantor or any of its Subsidiaries (provided that no such information shall be prepared required to be provided if providing such information would violate confidentiality agreements or result in accordance a loss of attorney-client privilege or a claim of attorney work product with GAAP and which shall not be subject respect to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, such information so long as Parent the REIT Guarantor notifies the Administrative Agent that such information is subject being withheld and the reason therefor); and
(j) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the REIT Guarantor or any of its Subsidiaries as the Administrative Agent may reasonably request (provided that no such information shall be required to be provided if providing such information would violate confidentiality agreements or result in a loss of attorney-client privilege or a claim of attorney work product with respect to such information so long as the public reporting requirements REIT Guarantor notifies the Administrative Agent that such information is being withheld and the reason therefor). So long as the REIT Guarantor is required to file periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC Borrower shall be deemed to satisfy have satisfied its obligation to deliver the requirements financial statements referred to in clauses (a), (b) and (h) upon the filing of this Section 8.01(c) on such reports with the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;Securities and Exchange Commission.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (CareTrust REIT, Inc.)
Financial Statements and Other Information. The Except to the extent any of the following information is available publicly and electronically from the SEC, the Borrower will furnish deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 30 90 days after the end of each month (including Fiscal Year, a copy of the last month of each fiscal quarter)annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in reasonable detail and reported on by McGladrey & Xxxxxx LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of such audit) to the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five (5) Business Days following 45 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three Fiscal Quarters of each Fiscal Year, a an unaudited consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date quarter and the results corresponding portion of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, ParentBorrower’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretoprevious Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a Compliance Certificate signed by the principal executive officer and the principal financial officer of the Borrower (i) certifying as soon as available and in any event within five (5) Business Days following to whether there exists a Default or Event of Default on the date on of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which Parent files the Borrower has taken or is required proposes to file its Annual Report on Form 10-K take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the SECfinancial covenants set forth in Article VI, a consolidated balance sheet for Parent and its (iii) specifying any change in the identity of the Borrower’s Subsidiaries as of the end of such fiscal yearFiscal Year or Fiscal Quarter from the Borrower’s Subsidiaries identified to the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the related consolidated application thereof has occurred since the date of the Borrower’s audited financial statements referred to in clause (a) above and, if any change has occurred, specifying the effect of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, change on the financial statements for accompanying such certificate;
(d) promptly after the fiscal years ending 2018 same become publicly available, copies of all periodic and 2019 may be subject to an Impermissible Qualification; provided further thatother reports, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K proxy statements and other materials filed with the SEC shall be deemed or with any national securities exchange, or distributed by the Borrower to satisfy its shareholders generally, as the requirements case may be;
(e) concurrently with the delivery of this Section 8.01(cthe financial statements referred to in subsection (a) on above, a pro forma budget for the date on which succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow; and
(f) promptly following any request therefor, such report is first available via other information regarding the SEC’s XXXXX system results of operations, business affairs and financial condition of the Borrower or a successor system related thereto;any Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Exactech Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 30 60 days after the end of each month (including the last month second fiscal quarter of each fiscal quarter)year, a consolidated copy of the Borrower’s semi-annual unaudited asset statement for such period, which shall have been prepared in accordance with the requirements of the SEC, including therein balance sheet for Parent and its Subsidiaries sheets of the Borrower as of the end of such monthperiod, and the related consolidated statements of income assets and cash flows for such month and the portion liabilities of the fiscal year through Borrower, including the portfolio of investments as of the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal yearsemi-annual period, together with a certificate and statements of a Responsible Officer earnings and cash flow of the Borrower stating that for such financial statements fairly present period, in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of noteseach case certified by a Financial Officer;
(b) as soon as available and in any event within five (5) Business Days following 60 days after the date on end of each fiscal year, a copy of the annual audit report for the Borrower for such fiscal year, which Parent files or is required to file a Quarterly Report on Form 10-Q shall have been prepared in accordance with the requirements of the SEC, a consolidated including therein balance sheet for Parent and its Subsidiaries sheets of the Borrower as of the end of such quarterfiscal year, and the related consolidated statements of income assets and cash flows for such quarter and the portion liabilities of the fiscal year through Borrower, including the portfolio of investments as of the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding previous fiscal year, and statements of earnings and cash flow of the Borrower for such fiscal year, in each case certified (other than as to the preparation of such statements in accordance with the requirements of the SEC and without any Impermissible Qualification) by Ernst & Young, or other independent public accountants reasonably acceptable to the Required Lenders, together with a certificate of from such accountants containing a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects computation of, and showing compliance with, the financial condition ratios contained in Section 7.11 and to the effect that, in making the examination necessary for the signing of Parent such annual report by such accountants, they have not become aware of any Default that has occurred and its Subsidiaries as at is continuing, or, if they have become aware of such date Default, describing such Default and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAPsteps, subject if any, being taken to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretocure it;
(c) as soon as available and in any event within five (5) Business Days following not later than seven days after the date on which Parent files or is required to file its Annual Report on Form 10-K with the SECend of each calendar month, a consolidated balance sheet for Parent and its Subsidiaries Compliance Certificate, duly completed as of at the end of such calendar month and signed by a Financial Officer;
(d) as soon as available and in any event not later than two Business Days after (i) the end of each calendar week, a Compliance Certificate, duly completed and signed by a Financial Officer, demonstrating compliance, as at the end of such calendar week, with Section 7.11(a) and (ii) each Calculation Date, in the event that any CP Note or any Loan shall have been outstanding on such Calculation Date, a Compliance Certificate, duly completed and signed by a Financial Officer, demonstrating compliance, as of such Calculation Date, with Sections 7.11(b) and 7.11(c);
(e) as soon as possible, and in any event within 60 days after the end of each fiscal yearquarter, an itemized statement as of the last Business Day of such fiscal quarter containing such detail as may be reasonably satisfactory to the Required Lenders, of the Borrower’s (i) assets, and the related consolidated statements Fair Market Value thereof and (ii) Liabilities provided, that at any time that Loans are outstanding, the statement referred to herein shall be provided no less frequently than the last Business Day of income, shareholders’ equity and cash flows for each month during such fiscal year, all in reasonable detail and setting forth in comparative form period;
(f) upon the figures for the previous fiscal year, accompanied by a report and opinion thereon written request of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, all such information as the Administrative Agent shall reasonably request relating to the value of any portfolio security or other asset of the Borrower or the assignment of values thereto by the Borrower or any other Person;
(g) as soon as possible and in any event within three Business Days after the occurrence of any Default (or immediately upon the occurrence thereof in the case of a Default specified in paragraphs (h) or (i) of Article 8), a statement of a Financial Officer setting forth details of such Default and the action which report the Borrower has taken and opinion shall be prepared proposes to take with respect thereto;
(h) as soon as possible and in accordance any event within three Business Days after (x) the occurrence of any materially adverse development with GAAP and which shall not be subject respect to any Impermissible Qualification; provided thatlitigation, action or proceeding constituting a Disclosed Matter or (y) the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further thatcommencement of any litigation, so long as Parent is subject to the public reporting requirements action or proceeding of the Exchange Acttype described in Section 4.6, Parent’s notice thereof and copies of all documentation filed in any proceeding relating thereto;
(i) promptly after the sending or filing thereof, copies of an Annual Report on Form 10-K all reports which the Borrower sends to any of its security holders, and all reports and registration statements which the Borrower files with the SEC shall be deemed or any national securities exchange;
(j) promptly after the entering into thereof, copies of all amendments to satisfy (i) all investment advisory contracts (including all sub-advisory or similar contracts) to which the requirements Borrower is a party, and of this all new investment advisory contracts (including all sub-advisory or similar contracts) and (ii) any of the documents referred to in Section 8.01(c7.7, in each case, entered into by the Borrower after the Agreement Date;
(k) as soon as possible after the occurrence thereof, notice to the Administrative Agent and the Lenders of any loss in the Total Asset Value that exceeds 20% of the Total Asset Value (i) as of the Business Day immediately preceding the date of such occurrence, (ii) calculated for the period commencing with the first Business Day of any calendar week and ending on the date last Business Day of such week, and/or (iii) calculated for the period commencing with the first Business Day of any calendar month and ending on which the last Business Day of such report is first available via month;
(l) at any other time reasonably requested by any Credit Party, a Compliance Certificate, duly completed and signed by a Financial Officer; and
(m) such other information respecting the SEC’s XXXXX system condition or a successor system related thereto;operations, financial or otherwise, of the Borrower as any Lender through the Administrative Agent may from time to time reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Duff & Phelps Utility & Corporate Bond Trust Inc)
Financial Statements and Other Information. The Borrower will furnish deliver by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or by email in accordance with Section 11.1 to the Administrative Agent:Agent (for prompt delivery to each Lender):
(a) as soon as available and in any event within 30 120 days after the end of each month (including Fiscal Year of BPL, a copy of the last month of each fiscal quarter)annual audited report for such Fiscal Year for BPL and its Subsidiaries, containing a consolidated balance sheet for Parent of BPL and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income income, partners’ equity and cash flows (together with all footnotes thereto) of BPL and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year (or, in the preceding fiscal year, together with a certificate case of a Responsible Officer such balance sheet as of the Borrower stating end of the previous Fiscal Year), all in reasonable detail and reported on by Deloitte & Touche LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of such audit) to the effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent BPL and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(bi) as soon as available and in any event within five 60 days after the end of each Fiscal Quarter of BPL (5) Business Days following other than the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SECfourth Fiscal Quarter of each Fiscal Year), a an unaudited consolidated and consolidating balance sheet for Parent of BPL and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of BPL and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date Fiscal Quarter and the results corresponding portion of operations of Parent BPL’s previous Fiscal Year and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(cii) as soon as available and in any event within five 60 days after the end of each Fiscal Quarter of BES (5other than the fourth Fiscal Quarter of each Fiscal Year, which shall be delivered concurrently with the reports referred to in subsection (a)), a detailed report of Hedged Eligible Inventory describing the hedging agreements to which each Buckeye Merchant Service Company and its Subsidiaries are a party, including the following information: (A) Business Days following the type of product, (B) volume, (C) location, (D) schedule of inventory xxxxxx in place (with counterparties and maturity dates) and (E) such other detailed information regarding such xxxxxx as reasonably requested by the Administrative Agent and as well as an Accounts Receivable (as defined in the Revolving Credit Agreement) aging report for each Buckeye Merchant Service Company and its respective Subsidiaries.
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b)(i) of this Section, a Compliance Certificate signed by the principal executive officer or the principal financial officer of BPL (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate and, if a Default or an Event of Default then exists, specifying the details thereof and the action taken or proposed to be taken with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, and (iii) stating whether any change in GAAP or the application thereof has occurred since the later of December 31, 2015 and the date of the prior Compliance Certificate that affects the Borrower’s financial statements, and if any such change has occurred, specifying the effect of such change on which Parent files the financial statements accompanying such Compliance Certificate;
(d) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Restricted Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; provided that the Borrower shall be deemed to have furnished the information specified in this clause (d) on the date that such information is posted at the Borrower’s website on the Internet or at such other website as notified to the Lenders:
(e) together with the annual audited financial statements required pursuant to subsection (a) above, (i) a certificate of insurance describing the types and amounts of insurance (property and liability) maintained by BPL and its Subsidiaries, naming the Administrative Agent on behalf of the Lenders as additional insured and (ii) a copy of each Buckeye Merchant Service Company’s current Risk Management Policy;
(f) promptly after Xxxxx’x or S&P has changed any credit rating relevant for calculating the Applicable Margin or the Applicable Percentage, notice of such change; and
(g) promptly following any reasonable request therefore by the Administrative Agent (on behalf of any Lender), such other information regarding the results of operations, business affairs and financial condition of the Borrower or any Restricted Subsidiary as the Administrative Agent (on behalf of any Lender) may reasonably request. Notwithstanding the foregoing, so long as the Borrower is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP periodic reports under Section 13(a) or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements Section 15(d) of the Exchange Act, Parentthe obligations in paragraphs (a) and (b)(i) of this Section 5.1 shall be deemed satisfied upon the filing (within the applicable time period set forth above) of the Borrower’s filing of an Annual Report on (or any direct or indirect parent thereof), as applicable, Form 10-K or 10-Q, applicable, filed with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish Deliver to the Administrative AgentAgent and each Lender:
(a) as soon as available and in any event within 30 90 days after the end of each month (including Fiscal Year, a copy of the last month of each fiscal quarter)annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such month, Fiscal Year and the related consolidated statements of income or operations, changes in stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period previous Fiscal Year, all in the preceding fiscal yearreasonable detail and reported on by independent public accountants of nationally recognized standing (without a “going concern” or like qualification, together with a certificate exception or explanation and without any qualification or exception as to scope of such audit other than any such qualification, exception or explanation resulting from or relating to (i) an actual or anticipated breach of a Responsible Officer of financial covenant set forth in Article VI or (ii) an upcoming maturity date) to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent the Borrower and its Subsidiaries for the period ended such Fiscal Year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five (5) Business Days following 45 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SECend of each Fiscal Quarter, a an unaudited consolidated balance sheet for Parent of the Borrower and its Subsidiaries as of the end of such quarter, Fiscal Quarter and the related unaudited consolidated statements of income or operations, changes in stockholders’ equity and cash flows of the Borrower and its Subsidiaries for such quarter Fiscal Quarter and the then elapsed portion of the fiscal year through the end of such quarterFiscal Year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date quarter and the results corresponding portion of operations of Parent Xxxxxxxx’s previous Fiscal Year, all in reasonable detail and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, such consolidated statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of the Borrower as presenting fairly the financial condition, results of operations, stockholders’ equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to changes resulting from normal, normal year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretofootnotes;
(c) concurrently with the delivery of the financial statements referred to in clauses (a) and (b) above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists a Default or Event of Default on the date of such certificate, and if a Default or an Event of Default then exists, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) [reserved], (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the Audited Financial Statements (or, if later, the date of the most recent audited financial statements delivered pursuant to Section 5.1(a)), and if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, (v) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be and (vi) if the Borrower has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by clauses (a) and (b) of this Section 5.1 shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, of the financial condition and results of operations of the Borrower and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Borrower.
(d) as soon as available and in any event within five 60 days after the end of the Fiscal Year, a pro forma budget for the succeeding Fiscal Year, containing (5i) Business Days an income statement, balance sheet and statement of cash flow of the Borrower and its Restricted Subsidiaries and (ii) a statement of cash flow of the Borrower only;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the SEC, or with any national securities exchange, or distributed by the Borrower to its stockholders generally, as the case may be;
(f) as soon as available and in any event within 15 days of the required date for delivery to the applicable state after the end of each fiscal year of the Borrower, annual financial statements of each HMO Subsidiary and Insurance Subsidiary as filed with the applicable HMO Regulator;
(g) as soon as available and in any event within 15 days of the required date for delivery to the applicable state after the end of each fiscal quarter of the Borrower, quarterly financial statements of each HMO Subsidiary and Insurance Subsidiary as filed with the applicable HMO Regulator; and
(h) promptly following any request therefor, such other information regarding the date on which Parent files results of operations, business affairs and financial condition of the Borrower or any Subsidiary as the Administrative Agent or any Lender may reasonably request. If at any time the Borrower is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as periodic reports under Section 13(a) or Section 15(d) of the end Securities Exchange Act of such fiscal year1934, and the related consolidated statements of incomeas amended, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable Borrower may satisfy its obligation to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification; provided that, deliver the financial statements for referred to in clauses (a) and (b) above by delivering such financial statements by electronic mail to such e-mail addresses as the fiscal years ending 2018 Administrative Agent and 2019 may be subject Lenders shall have provided to an Impermissible Qualification; provided further that, so long as Parent is subject Borrower from time to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;time.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent:
(a) as soon as available and in any event within 30 45 days after the end of each month (including the last month first three fiscal quarters of each fiscal year (or 120 days, in the case of the fourth fiscal quarter), a the consolidated balance sheet for Parent and its Subsidiaries sheets of the Obligors as of the end of such monthquarter, and the related consolidated statements of income income, shareholders’ equity and cash flows of Borrower and its Subsidiaries for such month quarter and the portion of the fiscal year through the end of such monthquarter, prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries as at such date and the results of operations of Parent Borrower and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAPGAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) other than with respect to the fiscal year ended December 31, 2015 (which shall be governed by Section 8.20), as soon as available and in any event within five (5) Business Days following 120 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each fiscal year, the SEC, a consolidated balance sheet for Parent sheets of Borrower and its Subsidiaries as of the end of such quarterfiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries for such fiscal year, prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of KPMG LLP or another firm of independent certified public accountants of recognized national standing acceptable to the Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit, and in the case of such consolidating financial statements, certified by a Responsible Officer of Borrower;
(c) as soon as available and in any event within 45 days after the end of each fiscal month of each fiscal year (including the last month of each fiscal quarter and each fiscal year), a consolidated balance sheet for Borrower and its Subsidiaries as at the end of such fiscal month, and the related consolidated statements of income or operations, shareholders’ (or members’) equity and cash flows for such quarter fiscal month and the portion of the Borrower’s fiscal year through the end of such quarterthen ended, prepared in accordance with GAAP consistently applied, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent Borrower and its Subsidiaries as at such date and the results of operations of Parent Borrower and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAPGAAP consistently applied, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that;
(d) together with the financial statements required pursuant to Sections 8.01(a), so long (b) and (c), a compliance certificate of a Responsible Officer as Parent is subject to the public reporting requirements of the Exchange Actend of the applicable accounting period (which delivery may, Parent’s filing of unless a Quarterly Report on Form 10-Q with the SEC Lender requests executed originals, be by electronic communication including fax or email and shall be deemed to satisfy be an original authentic counterpart thereof for all purposes) substantially in the requirements form of this Section 8.01(bExhibit E (a “Compliance Certificate”) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related theretoincluding details of any issues that are material that are raised by auditors;
(ce) copies of all letters of representation signed by an Obligor to its auditors and, promptly upon receipt thereof, copies of all auditor reports delivered for each fiscal quarter;
(f) as soon as available and in any event no later than 45 days following approval by the Board of Directors (or similar body) of Borrower, copies of all annual financial projections commensurate in form and substance with those provided to Borrower’s equity investors;
(g) promptly, and in any event within five (5) Business Days following after receipt thereof by an Obligor thereof, copies of each notice or other correspondence received from any securities regulator or exchange to the date on authority of which Parent files Borrower may become subject from time to time concerning any investigation or is required to file its Annual Report on Form 10-K with possible investigation or other inquiry by such agency regarding financial or other operational results of such Obligor;
(h) the SEC, a consolidated balance sheet for Parent information regarding insurance maintained by Borrower and its Subsidiaries as required under Section 8.05;
(i) promptly following Administrative Agent’s request at any time, proof of Borrower’s compliance with Section 10;
(j) within five Business Days of delivery, copies of all statements, reports and notices (including board kits) made available to holders of Borrower’s Equity Interests; providedthat any such material may be redacted by Borrower to exclude information relating to the Lenders (including Borrower’s strategy regarding the Loans);
(k) as soon as possible and in any event within ten Business Days after Borrower obtains knowledge of any return, recovery, dispute or claim related to any Product or inventory that involves more than $1,000,000, written notice thereof from a Responsible Officer of Borrower which notice shall include any statement setting forth details of such return, recovery, dispute or claim; and
(l) such other information respecting the operations, properties, business or condition (financial or otherwise) of the end of such fiscal year, and the related consolidated statements of income, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable Obligors (including with respect to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject Collateral) as the Majority Lenders may from time to any Impermissible Qualification; provided that, the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;time reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish deliver to the Administrative AgentLender:
(a) as soon as available and in any event within 30 90 days after the end of each month (including fiscal year of Holdings, a copy of the last month of each annual audited report for such fiscal quarter)year for Holdings and its Subsidiaries, containing a consolidated balance sheet for Parent of Holdings and its Subsidiaries as of the end of such month, fiscal year and the related consolidated statements of income income, stockholders' equity and cash flows (together with all footnotes thereto) of Holdings and its Subsidiaries for such month and the portion of the fiscal year through the end of such monthyear, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding period in the preceding previous fiscal year, together with all in reasonable detail and reported on by independent public accountants of nationally recognized standing (without a certificate "going concern" or like qualification, exception or explanation and without any qualification or exception as to scope of a Responsible Officer of such audit) to the Borrower stating effect that such financial statements present fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent Holdings and its Subsidiaries for the period ended such fiscal year on such date and have been prepared a consolidated basis in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments GAAP and except for that the absence of notesexamination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within five (5) Business Days following 45 days after the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with end of each of the SECfirst three Fiscal Periods of each fiscal year of Holdings, a an unaudited consolidated balance sheet for Parent and its Subsidiaries as of the end of such quarter, and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent Holdings and its Subsidiaries as of the end of such fiscal year, quarter and the related unaudited consolidated statements of income, shareholders’ equity income and cash flows of Holdings and its Subsidiaries for such fiscal quarter and the then elapsed portion of such fiscal year, all in reasonable detail and setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of Holdings's previous fiscal year, accompanied all certified by the chief financial officer or treasurer of Holdings as presenting fairly in all material respects the financial condition and results of operations of Holdings and its Subsidiaries on a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared consolidated basis in accordance with GAAP and which shall not be GAAP, subject to any Impermissible Qualification; provided that, normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements for the fiscal years ending 2018 referred to in clauses (a) and 2019 may be subject (b) above, a certificate of a Responsible Officer, (i) certifying as to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements whether there exists a Default or Event of the Exchange Act, Parent’s filing of an Annual Report on Form 10-K with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) Default on the date on of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto and (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants under Article VI in substantially the form as set forth in Schedule 5.1; and
(d) promptly following any request therefor, such report is first available via other information regarding the SEC’s XXXXX system results of operations, business affairs and financial condition of Holdings or a successor system related thereto;any Subsidiary as the Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Loan Agreement (Central Freight Lines Inc)
Financial Statements and Other Information. The Borrower Company will ------------------------------------------ furnish to the Administrative AgentAgent and each Lender:
(a) on the date that is the earlier of (i) the date on which the same shall have been filed with the SEC and (ii) the date the same are required to be filed with the SEC (without regard to any extension of the SEC's filing requirements), the audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows of the Company and its Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by Grant Thornton LLP or other independent public accountanxx xx xxxxxxxxed national standing (without a "going concern" or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP;
(b) on the date that is the earlier of (i) the date on which the same shall have been filed with the SEC and (ii) the date the same are required to be filed with the SEC (without regard to any extension of the SEC's filing requirements), the consolidated balance sheets and related consolidated statements of income and cash flows of the Company and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for (or, in the case of the balance sheet, as of the end of) the corresponding period or periods of the previous fiscal year, all certified by a Financial Officer of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) as soon as available and in any event within 30 days after the end date on which financial statements under clause (b) of each month (including this Section shall have been filed with the last month SEC, the consolidating balance sheets and related consolidating statements of each fiscal quarter), a consolidated balance sheet for Parent income and cash flows of the Company and its Subsidiaries as of the end of and for such month, fiscal quarter and the related consolidated statements of income and cash flows for such month and the then elapsed portion of the fiscal year through the end of such monthyear, all in reasonable detail and setting forth in each case in comparative form the figures for (or, in the case of the balance sheet, as of the end of) the corresponding period in or periods of the preceding previous fiscal year;
(d) concurrently with any delivery of financial statements under clause (a) or (b) of this Section, together with a certificate of a Responsible Financial Officer of the Borrower Company (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 7.01, 7.06 and 7.11 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under clause (a) of this Section, a certificate of the accounting firm that reported on such financial statements fairly present stating whether they obtained knowledge during the course of their examination of such financial statements of any Default under Article VII including Section 7.11 (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) promptly upon receipt thereof, copies of all other reports submitted to the Company by its independent certified public accountants in all material respects connection with any annual or interim audit or review of the financial condition books of Parent the Company made by such accountants;
(g) annually, as soon as available, but in any event within 60 days after the last day of each fiscal year of the Company, consolidated and its Subsidiaries as at such date and consolidating projections of the results of operations of Parent Company and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for following five fiscal years of the absence of notesCompany;
(bh) as soon as available promptly after the same become publicly available, copies of all periodic and in other reports, proxy statements and other materials filed by the Company or any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q of its Subsidiaries with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as or any Governmental Authority succeeding to any or all of the end functions of said Commission, or with any national securities exchange, or distributed by the Company to its shareholders generally, as the case may be;
(i) promptly following any request therefor, such quarterother information regarding the operations, business affairs and the related consolidated statements of income and cash flows for such quarter and the portion of the fiscal year through the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and the Company or any of its Subsidiaries as at such date Subsidiaries, or compliance with the terms of this Agreement and the results of operations of Parent and its Subsidiaries for other Loan Documents, as the period ended on such date and have been prepared in accordance with GAAPAdministrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Sections 6.01(a), subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject (b) or (h) (to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q extent any such documents are included in materials otherwise filed with the SEC SEC) shall be deemed to satisfy the requirements of this Section 8.01(b) have been delivered on the date (i) on which the Company posts such documents or provides a link thereto on the Company's website or (ii) on which such report is first available via documents are posted on the SEC’s XXXXX system Company's behalf on Intralinks/IntraAgency or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on another relevant website, if any, to which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, each Lender and the related consolidated statements of incomeAdministrative Agent have access (whether a commercial, shareholders’ equity and cash flows for such fiscal year, all in reasonable detail and setting forth in comparative form the figures for the previous fiscal year, accompanied third-party website or whether sponsored by a report and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with GAAP and which shall not be subject to any Impermissible Qualification); provided that, that the financial statements for Company shall notify the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements Administrative Agent (by telecopier or electronic mail) of the Exchange Act, Parent’s filing posting of an Annual Report on Form 10-K any such documents and provide the Administrative Agent with the SEC shall be deemed to satisfy the requirements electronic mail versions of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;documents.
Appears in 1 contract
Samples: Credit Agreement (Griffon Corp)
Financial Statements and Other Information. The Borrower will furnish Promptly deliver to the Administrative Agent:
Bank (ai) as soon as available and in any event within 30 sixty (60) days after the end of each month (including the last month of each its first three fiscal quarter)quarters, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such month, and the related consolidated statements of income and cash flows for such month and the portion of the fiscal year through the end of such month, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding fiscal year, together with a certificate of a Responsible Officer an internally prepared financial statement of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent and its Subsidiaries as at such date and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes;
(b) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file a Quarterly Report on Form 10-Q with the SEC, a consolidated balance sheet for Parent and its Subsidiaries each subsidiary as of the end of such quarter, and the related consolidated statements which financial statement shall consist of income and cash flows for such the quarter, for the corresponding quarter in the previous fiscal year and for the portion period from the end of the previous fiscal year, with a consolidating and consolidated balance sheet as of the fiscal year through quarter end all in such detail as the Bank may request; (ii) within one hundred twenty (120) days after the end of such quarter, all in reasonable detail and setting forth in comparative form the figures for the corresponding period in the preceding each fiscal year, together with a certificate of a Responsible Officer internally prepared consolidating and consolidated statements of the Borrower stating that such financial statements fairly present in all material respects the financial condition of Parent Borrower’s and each Subsidiary’s income and cash flows and its Subsidiaries as at such date consolidating and the results of operations of Parent and its Subsidiaries for the period ended on such date and have been prepared in accordance with GAAP, subject to changes resulting from normal, year-end audit adjustments and except for the absence of notes; provided that, so long as Parent is subject to the public reporting requirements of the Exchange Act, Parent’s filing of a Quarterly Report on Form 10-Q with the SEC shall be deemed to satisfy the requirements of this Section 8.01(b) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;
(c) as soon as available and in any event within five (5) Business Days following the date on which Parent files or is required to file its Annual Report on Form 10-K with the SEC, a consolidated balance sheet for Parent and its Subsidiaries as of the end of such fiscal year, setting forth comparative figures for the preceding fiscal year; all such statements shall be certified by the Borrower’s chief financial officer to be correct and in accordance with the related consolidated Borrower’s and each Subsidiary’s records and to present fairly the results of the Borrower’s and each Subsidiary’s operations and cash flows and its financial position at year end; and (iii) with each of the financial statements set forth above in clauses (i) and (ii) statement of income, shareholders’ equity a certificate executed by the Borrower’s chief executive or chief financial officers or other such person responsible for the financial management of the Borrower (A) setting forth the computations required to establish the Borrower’s compliance with each financial covenant, if any, during the statement period, (B) stating that the signer of the certificate has reviewed this Agreement and cash flows for such fiscal the operations and condition (financial or other) of the Borrower and each of its Subsidiaries during the relevant period and (C) stating that no Event of Default occurred during the period, or if an Event of Default did occur, describing its nature, the date(s) of its occurrence or period of existence and what action the Borrower has taken with respect thereto; and (iv) prior to December 31 of each year, all in reasonable detail Borrower’s operating and setting forth in comparative form the figures capital budgets for the previous fiscal succeeding year. The Borrower shall also promptly provide the Bank with copies of all annual reports, accompanied by proxy statements and similar information distributed to shareholders, partners or members, and copies of all filings with the Securities and Exchange Commission and the Pension Benefit Guaranty Corporation, and shall provide, in form satisfactory to the Bank, such additional information, reports or other information as the Bank may from time to time reasonably request regarding the financial and business affairs of the Borrower or any Subsidiary. If the Borrower is an individual, the Borrower shall provide annually a report personal financial statement in form and opinion thereon of RBSM LLP or another firm of independent certified public accountants of recognized national standing reasonably detail acceptable to the Administrative Agent, which report Bank and opinion shall be prepared in accordance with GAAP and which shall not be subject such other financial information as the Bank may from time to any Impermissible Qualification; provided that, time reasonably request. Promptly upon the financial statements for the fiscal years ending 2018 and 2019 may be subject to an Impermissible Qualification; provided further that, so long as Parent is subject to the public reporting requirements request of the Exchange ActBank from time to time, ParentBorrower shall supply all additional information requested and permit the Bank’s filing officers, employees, accountants, attorneys and other agents to (x) visit and inspect each of an Annual Report on Form 10-K Borrower’s premises, (y) Upon no less than seven (7) days advance written notice to Borrower Bank may, at Bank’s sole expense, examine, audit, copy and extract from Borrower’s records and (z) discuss Borrower’s or its affiliates’ business, operations, assets, affairs or condition (financial or other) with the SEC shall be deemed to satisfy the requirements of this Section 8.01(c) on the date on which such report is first available via the SEC’s XXXXX system or a successor system related thereto;its responsible officers and independent accountants.
Appears in 1 contract
Samples: Credit Agreement (Corning Natural Gas Holding Corp)
