Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender: (a) within 90 days after the end of each fiscal year of the Borrower, its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other 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 consolidated financial condition and results of operations of the Borrower and the 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 Borrower, its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; (c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; (d) concurrently with any delivery of financial statements under paragraph (a), (b) or (c) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines); (f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget; (g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be; (h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and (i) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably request.
Appears in 3 contracts
Samples: Revolving Credit Agreement (Memc Electronic Materials Inc), Revolving Credit Agreement (Memc Electronic Materials Inc), Revolving Credit Agreement (Memc Electronic Materials Inc)
Financial Statements and Other Information. The Borrower Company will furnish to the Administrative Agent and each LenderAgent:
(a) within 90 days as soon as practicable, and in any event no later than the earlier to occur of (x) the one-hundredth (100th) day after the end of each fiscal year of the BorrowerCompany, and (y) the fifth (5th) day after the date on which any of the following items are required to be delivered to the SEC, its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries for such fiscal year on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days as soon as practicable, and in any event no later than the earlier to occur of (x) the fiftieth (50th) day after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerCompany, and (y) the fifth (5th) day after the date on which any of the following items are required to be delivered to the SEC, its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries for such period or periods on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end concurrently with any delivery of each of the first two months of each fiscal quarter of the Borrowerfinancial statements under clause (a) above, its unaudited a reasonably detailed business plan and forecast (including a projected consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 income statement and statement of cash flows) of the end of) the previous Company for such fiscal year, all certified by one of its Financial Officers as presenting fairly, in all material respects, the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower Company (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 computing the Applicable Rate and demonstrating compliance with Sections 6.126.01(e), 6.136.01(f), 6.14 6.01(k), 6.04, 6.06 and 6.15 6.11 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph 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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower Company or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower Company to its public stockholders shareholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ig) promptly following any reasonable request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any Subsidiary, or compliance with the terms of any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to clauses (a), (b) and (f) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System; provided that the Company shall notify (which may be by facsimile or electronic mail and may also be included in the certificate delivered pursuant to clause (d) of this Section 5.01) the Administrative Agent of the filing of any such documents. Notwithstanding anything contained herein, in every instance the Company shall be required to provide paper copies of the compliance certificates required by clause (d) of this Section 5.01 to the Administrative Agent.
Appears in 3 contracts
Samples: Credit Agreement (Heidrick & Struggles International Inc), Amendment and Restatement Agreement (Heidrick & Struggles International Inc), Credit Agreement (Heidrick & Struggles International Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and for distribution to each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed one hundred twenty (120) days after the end of each fiscal year of the Borrower), its commencing with the fiscal year ending December 31, 2022, the audited consolidated balance sheet statements of assets and related liabilities, statements of operations, stockholders' equity and changes in net assets, cash flows and schedule of investments of the Borrower and its consolidated 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 KPMG LLP or any other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as disclosed therein) applied;
(b) within 45 forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed seventy-five (75) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower), its unaudited the consolidated balance sheet statements of assets and related liabilities, statements of operations, stockholders' equity and changes in net assets, cash flows and schedule of investments of the Borrower and its consolidated 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 corresponding period or periods of the previous fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as disclosed therein) applied, subject to normal year-end audit adjustments and adjustments, the absence of footnotesfootnotes and as otherwise described therein;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) or (c) aboveof this Section 5.01, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether the Borrower has knowledge that a Default has occurred and, if a Default has occurredand is continuing, specifying the details thereof and any action which the Borrower has taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.126.01(b), 6.136.01(i), 6.14 6.01(l), 6.01(m), 6.01(n), 6.02(d), 6.02(e), 6.03(c), 6.03(d), 6.03(e), 6.03(h), 6.03(i), 6.04(d), 6.04(j), 6.05(b), 6.05(d), 6.05(e), 6.05(f), 6.07 and 6.15 6.12(c) or, if not in compliance, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (iii) to the extent not previously disclosed on a Form 10-K or Form 10-Q previously filed with the SEC, stating whether any change in GAAP as applied by (or in the application thereof of GAAP by) the Borrower has occurred since the date of Effective Date (but only if the Borrower's audited Borrower has not previously reported such change to the Administrative Agent and if such change has had a material effect on the financial statements referred to in Section 3.04 statements) and, if any such change has occurred, specifying the effect (unless such effect has been previously reported) as determined by the Borrower of such change on the financial statements accompanying such certificate;
(d) as soon as available and in any event not later than the last Business Day of the calendar month following each monthly accounting period (ending on the last day of each calendar month) of the Borrower, a Borrowing Base Certificate as at the last day of such accounting period presenting (i) the Borrower’s computation (and including the rationale for any industry reclassification) of the Borrowing Base, (ii) [reserved], (iii) (A) the quantity sold of any Portfolio Investment previously included in the Borrowing Base in such accounting period, (B) the value assigned to each such Portfolio Investment as of the prior accounting period, (C) the weighted average sale price of each such Portfolio Investment sold and (D) the variance between (B) and (C) and (iv) the aggregate amount of all accrued paid-in-kind interest and all paid-in-kind interest collected, in each case, during such accounting period on Portfolio Investments included in the Borrowing Base;
(e) concurrently with promptly but no later than five (5) Business Days after any delivery Financial Officer of financial statements under paragraph (a) abovethe Borrower shall at any time have knowledge that there is a Borrowing Base Deficiency, a certificate Borrowing Base Certificate as at the date the Borrower has knowledge of such Borrowing Base Deficiency indicating the amount of such Borrowing Base Deficiency as at the date the Borrower obtained knowledge of such deficiency and the amount of such Borrowing Base Deficiency as 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 date not earlier than one (which certificate may be limited 1) Business Days prior to the extent required by accounting rules or guidelines)date the Borrowing Base Certificate is delivered pursuant to this paragraph;
(f) prior promptly upon receipt thereof, copies of all significant written reports submitted to management or the board of directors of the Borrower by the Borrower’s independent public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems of the Borrower or any of its Significant Subsidiaries delivered by such accountants to the commencement management or board of each fiscal year directors of the Borrower (other than the periodic reports that the Borrower’s independent auditors provide, in the ordinary course, to the audit committee of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements ’s board of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetdirectors);
(g) promptly after (and only if) the same become publicly available, copies of all periodic and other reports, proxy statements and other materials sent to all stockholders or filed by any of the Borrower or any Subsidiary Obligors with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ih) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiaryof its Subsidiaries, or compliance by the Borrower and the Obligors with the terms of any this Agreement and the other Loan DocumentDocuments, or for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act and the Beneficial Ownership Regulation (to the extent applicable), as the Administrative Agent or any Lender (acting through the Administrative Agent) may reasonably request. Notwithstanding anything in this Section 5.01 to the contrary, the Borrower shall be deemed to have satisfied the requirements of this Section 5.01 (other than Sections 5.01(c), (d), (e) and (h)) if the reports, documents and other information of the type otherwise so required thereby are publicly available when filed on XXXXX at the xxx.xxx.xxx website or any successor service provided by the SEC.
Appears in 3 contracts
Samples: Senior Secured Revolving Credit Agreement (Owl Rock Capital Corp III), Senior Secured Credit Agreement (Owl Rock Technology Finance Corp.), Senior Secured Revolving Credit Agreement (Owl Rock Capital Corp)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the BorrowerBorrower (or, if earlier, by the date that the Annual Report on Form 10-K of the Borrower for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Ernst & Young LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerBorrower (or, if earlier, by the date that the Quarterly Report on Form 10-Q of the Borrower for such fiscal quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its unaudited consolidated balance sheet and related statements of operations, stockholders' equity 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 consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 and 6.15 Section 6.11 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(ed) concurrently with any delivery of financial statements under paragraph 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 Default under Section 6.11 (which certificate may be limited to the extent required by accounting rules or guidelines);
(fe) prior to the commencement as soon as available, but in any event not later than May 31 of each fiscal year year, a copy of the Borrower, a detailed consolidated budget for such fiscal year plan and forecast (including a projected consolidated balance sheet and related statements of projected operations sheet, income statement and cash flow as statement) of the end Borrower and its Subsidiaries for each quarter of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetthe Borrower in form reasonably satisfactory to the Administrative Agent;
(gf) promptly after the same become publicly available, copies of all periodic and other reports, reports and proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ig) 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 any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to clauses (a), (b) and (f) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System (or any successor thereto); provided that the Borrower shall upon request provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies or links to access such documents) 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 clause (c) of this Section 5.01 to the Administrative Agent.
Appears in 3 contracts
Samples: 364 Day Senior Secured Bridge Credit Agreement (Microchip Technology Inc), Credit Agreement (Microchip Technology Inc), Credit Agreement (Microchip Technology Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
Agent: (a) within 90 days after the end of each fiscal year of the BorrowerFiscal Year, its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal yearFiscal Year, all reported on by KPMG Deloitte & Touche LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
applied (except as otherwise disclosed in such financial statements); (b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerFiscal Year, its unaudited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal yearFiscal 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 yearFiscal Year, all certified by one of its Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end and audit adjustments and the absence of footnotes;
; (c) within 10 Business Days 30 days after the end of each of the first two fiscal months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and monthly "Operating Cash Flow (EBITDA)" report for such month and the then elapsed portion of the fiscal yearmonth, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, substantially in the case of form delivered to the balance sheet, as of Lenders prior to the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly, in all material respects, the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
Effective Date; (d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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) in the case of such financial statements under clause (a) or (b) above, setting forth reasonably detailed calculations demonstrating compliance with Sections 6.126.16, 6.136.17, 6.14 6.18 and 6.15 6.19 and determining the Applicable Rate and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably request.the
Appears in 2 contracts
Samples: Credit Agreement (Supermarkets General Holdings Corp), Credit Agreement (Pathmark Stores Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and (for further distribution to each Lender:):
(a) as soon as available and in any event within 90 95 days (or within five days after such other time period required by the SEC) after the end of each fiscal year of the Borrower, its audited consolidated balance sheet and related statements of operations, stockholders' shareholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Deloitte & Touche LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied(the Lenders agree that the Borrower’s obligations under this paragraph (a) will be satisfied in respect of any fiscal year by delivery to the Administrative Agent within 95 days (or within five days of such other time period required by the SEC) after the end of such fiscal year of its annual report for such fiscal year on Form 10-K as filed with the SEC);
(b) as soon as available and in any event within 45 50 days (or within five days after such other time period required by the SEC) after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerBorrower (beginning with the fiscal quarter ending on June 30, 2004), its unaudited consolidated balance sheet and related statements of operations, stockholders' equity 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 Responsible Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotesfootnotes (the Lenders agree that the Borrower’s obligations under this paragraph (b) will be satisfied in respect of any fiscal quarter by delivering to the Administrative Agent within 50 days (or within five days after such other time period required by the SEC) after the end of such fiscal quarter of its quarterly report for such fiscal quarter on Form 10-Q as filed with the SEC);
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate Compliance Certificate of a Financial Responsible Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12Section 7.01, 6.13, 6.14 and 6.15 as applicable and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 5.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificateCompliance Certificate;
(ed) concurrently with any delivery of financial statements under paragraph 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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(fe) prior to within 30 days after the commencement of filing for each fiscal year year, copies of financial reports of the BorrowerSignificant Subsidiaries prepared in accordance with statutory accounting principles; provided, however, during any period in which a detailed consolidated budget any Ratings Downgrade has occurred and is continuing, within 30 days after the filing for each fiscal quarter following such fiscal year (including a projected consolidated balance sheet and related statements Ratings Downgrade, copies of projected operations and cash flow as financial reports of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetSignificant Subsidiaries prepared in accordance with statutory accounting principles;
(gf) promptly after the same become publicly availableavailable or upon transmission or receipt thereof, (i) copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower to its public stockholders shareholders generally, as the case may be;
, provided that, with respect to materials filed with any national securities exchange, only material filings shall be required to be delivered pursuant to this clause (hf) on and (ii) upon the sixth Business Day of each calendar month, a detailed report request of the Consolidated Backlog for such monthAdministrative Agent, measured as all material reports and other annual statements that the Borrower or any Subsidiary may render to or file with any Governmental Authority, including without limitation the Department of the close Health and Human Services Office of business on the prior Business DayInspector General; and
(ig) 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 any Loan Documentthis Agreement, as the Administrative Agent or any Lender (acting through the Administrative Agent) may reasonably request. Documents required to be delivered pursuant to Section 6.01(a), (b) 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 link thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02; 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 6.01(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.
Appears in 2 contracts
Samples: Credit Agreement (Health Net Inc), Credit Agreement (Health Net Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the BorrowerBorrower (or, if earlier, by the date that the Annual Report on Form 10-K of the Borrower for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Ernst & Young LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerBorrower (or, if earlier, by the date that the Quarterly Report on Form 10-Q of the Borrower for such fiscal quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its unaudited consolidated balance sheet and related statements of operations, stockholders' equity 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 consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 and 6.15 Section 6.11 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(ed) concurrently with any delivery of financial statements under paragraph 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 Default under Section 6.11 (which certificate may be limited to the extent required by accounting rules or guidelines);
(fe) prior to the commencement as soon as available, but in any event not later than May 31 of each fiscal year year, a copy of the Borrower, a detailed consolidated budget for such fiscal year plan and forecast (including a projected consolidated balance sheet and related statements of projected operations sheet, income statement and cash flow as statement) of the end Borrower and its Subsidiaries for each quarter of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetthe Borrower in form reasonably satisfactory to the Administrative Agent;
(gf) promptly after the same become publicly available, copies of all periodic and other reports, reports and proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ig) 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 any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to clauses (a), (b) and (f)of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System; provided that the Borrower shall upon request provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies or links to access such documents) 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 clause (c) of this Section 5.01 to the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Microchip Technology Inc), Credit Agreement (Microchip Technology Inc)
Financial Statements and Other Information. The Borrower Company will furnish to the Administrative Agent and for distribution to each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the BorrowerCompany (or, if earlier, by the date that the Annual Report on Form 10-K of the Company for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG PricewaterhouseCoopers LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerCompany (or, if earlier, by the date that the Quarterly Report on Form 10-Q of the Company for such fiscal quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower Company (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 and 6.15 Section 6.11 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(ed) concurrently with any delivery of financial statements under paragraph 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 Default under Section 6.11 (which certificate may be limited to the extent required by accounting rules or guidelines);
(fe) prior to as soon as available, but in any event not more than forty-five (45) days following the commencement end of each fiscal year of the BorrowerCompany, a detailed consolidated budget for such fiscal year copy of the plan and forecast (including a projected consolidated balance sheet sheet, income statement and related statements of projected operations and cash funds flow as statement) of the end Company for each quarter of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetin form reasonably satisfactory to the Administrative Agent;
(gf) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower Company or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower Company to its public stockholders shareholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ig) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any Subsidiary, or compliance with the terms of any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to clauses (a), (b) and (f) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System. Notwithstanding anything contained herein, in every instance the Company shall be required to provide paper copies of the compliance certificates required by clause (c) of this Section 5.01 to the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Newmarket Corp), Credit Agreement (Newmarket Corp)
Financial Statements and Other Information. The U.S. Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year A copy of the U.S. Borrower, its ’s audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Ernst & Young LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the U.S. Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
applied (bbut subject to the last sentence of Section 1.04), as soon as available, but in any event within the earlier of (i) within 45 90 days after the end of each of the first three fiscal quarters of each fiscal year of the U.S. Borrower or (ii) five (5) Business Days after the filing of such financial statements with the SEC;
(b) A copy of the U.S. Borrower, its unaudited ’s consolidated balance sheet and related statements of operations, stockholders' equity 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 consolidated financial condition and results of operations of the U.S. Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedapplied (but subject to the last sentence of Section 1.04), subject to normal year-end audit adjustments and the absence of footnotes;
, as soon as available, but in any event within the earlier of (ci) within 10 Business Days 45 days after the end of each of the first two months three fiscal quarters of each fiscal quarter year of the Borrower, its unaudited consolidated balance sheet and related U.S. Borrower or (ii) five (5) Business Days after the filing of such financial statements of operations and cash flows as of with the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesSEC;
(dc) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower U.S. Borrower, in a form acceptable to the Administrative Agent, (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 6.10 and 6.15 6.11 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(id) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the U.S. Borrower or any Subsidiary, or compliance with the terms of any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request. All financial statements referred to in Section 5.01(a) and (b) shall be deemed to have been delivered upon the filing of such financial statements by the Borrower through the SEC’s XXXXX system or publication by the Borrower of such financial statements on its website and the receipt by the Administrative Agent of electronic notice from the Borrower with a link to such financial statements.
Appears in 2 contracts
Samples: Credit Agreement (Miller Herman Inc), Credit Agreement (Miller Herman Inc)
Financial Statements and Other Information. The Borrower Company will furnish to the Administrative Agent and each LenderLender through the Administrative Agent:
(a) within 90 ninety (90) days after the end of each fiscal year Fiscal Year of the BorrowerCompany (or, if earlier, by the date that the Annual Report on Form 10-K of the Company for such Fiscal Year would be required to be filed under the rules and regulations of the SEC, giving effect to any extension available thereunder for the filing of such form), its audited consolidated balance sheet and related statements of operationsincome, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal yearFiscal Year, all reported on by KPMG Deloitte & Touche, LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 sixty (60) days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal year Fiscal Year of the BorrowerCompany (or, if earlier, by the date that the Quarterly Report on Form 10-Q of the Company for such Fiscal Quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any extension available thereunder for the filing of such form), its unaudited consolidated balance sheet and related statements of operationsincome, stockholders' ’ equity and cash flows as of the end of and for such fiscal quarter Fiscal Quarter and the then elapsed portion of the fiscal yearFiscal 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 yearFiscal Year, all certified by one of its Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower Company (i) certifying, to such Financial Officer's stating that he or she has obtained no knowledge after due inquiry, as to whether that a Default has occurred (except as set forth in such certificate) and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) (x) setting forth reasonably detailed calculations demonstrating the calculation of the Gross Leverage Ratio and the Net Leverage Ratio at the end of the relevant Fiscal Quarter or Fiscal Year and (y) demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 Section 6.07 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gd) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower Company or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(he) on promptly following any request therefor, provide information and documentation reasonably requested by the sixth Business Day Administrative Agent or any Lender (acting through the Administrative Agent) for purposes of each calendar monthcompliance with applicable “know your customer” and anti-money-laundering rules and regulations, a detailed report of including, without limitation, the Consolidated Backlog for such month, measured as of PATRIOT Act and the close of business on the prior Business DayBeneficial Ownership Regulation; and
(if) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any Subsidiary, or compliance with the terms of any Loan Document, Subsidiary as the Administrative Agent or any Lender may reasonably requestrequest (other than materials protected by the attorney-client privilege and materials which the Company or such Subsidiary, as applicable, may not disclose without violation of a confidentiality obligation binding upon it). Documents required to be delivered pursuant to clauses (a), (b) and (d) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System.
Appears in 2 contracts
Samples: Credit Agreement (Tapestry, Inc.), Credit Agreement (Tapestry, Inc.)
Financial Statements and Other Information. The Borrower Company will furnish to the Administrative Agent and each LenderAgent:
(a) within 90 days as soon as practicable, and in any event no later than the earlier to occur of (x) the one-hundredth (100th) day after the end of each fiscal year of the BorrowerCompany, and (y) the fifth (5th) day after the date on which any of the following items are required to be delivered to the SEC, its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries for such fiscal year on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days as soon as practicable, and in any event no later than the earlier to occur of (x) the fiftieth (50th) day after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerCompany, and (y) the fifth (5th) day after the date on which any of the following items are required to be delivered to the SEC, its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries for such period or periods on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end concurrently with any delivery of each of the first two months of each fiscal quarter of the Borrowerfinancial statements under clause (a) above, its unaudited a reasonably detailed business plan and forecast (including a projected consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 income statement and statement of cash flows) of the end of) the previous Company for such fiscal year, all certified by one of its Financial Officers as presenting fairly, in all material respects, the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower Company (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 computing the Applicable Rate and demonstrating compliance with Sections 6.126.01(e), 6.136.01(f), 6.14 6.01(l), 6.04, 6.06 and 6.15 and 6.11, (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate, and (iv) updating Schedule 3.01 in accordance with the definitions of “Material Subsidiary” and “Subsidiary Guarantor”;
(e) concurrently with any delivery of financial statements under paragraph 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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower Company or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower Company to its public stockholders shareholders generally, as the case may be;
(hg) on promptly following any request therefor, provide information and documentation reasonably requested by the sixth Business Day Administrative Agent or any Lender for purposes of each calendar monthcompliance with applicable “know your customer” and anti-money-laundering rules and regulations, a detailed report of including, without limitation, the Consolidated Backlog for such month, measured as of PATRIOT Act and the close of business on the prior Business DayBeneficial Ownership Regulation; and
(ih) promptly following any reasonable request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any Subsidiary, or compliance with the terms of any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to clauses (a), (b) and (f) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System; provided that the Company shall notify (which may be by facsimile or electronic mail and may also be included in the certificate delivered pursuant to clause (d) of this Section 5.01) the Administrative Agent of the filing of any such documents. Notwithstanding anything contained herein, in every instance the Company shall be required to provide paper copies of the compliance certificates required by clause (d) of this Section 5.01 to the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Heidrick & Struggles International Inc), Credit Agreement (Heidrick & Struggles International Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the BorrowerBorrower (or, if earlier, by the date that the Annual Report on Form 10-K of the Borrower for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form) (commencing with the fiscal year ending December 31, 2023), its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other independent public accountants of recognized national standing (without a "“going concern" ” or like qualification qualification, commentary or exception exception, and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerBorrower (or, if earlier, by the date that the Quarterly Report on Form 10 Q of the Borrower for such fiscal quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form) (commencing with the fiscal quarter ending September 30, 2023), its unaudited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its a Financial Officers Officer as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after concurrently with any delivery of financial statements under clause (a) or (b) above (commencing with the end of each of the first two months of each fiscal quarter of ending September 30, 2023) (collectively or individually, as the Borrowercontext requires, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year“Financial Statements”), setting forth in each case in comparative form the figures for the corresponding period or periods of a Compliance Certificate (ori) certifying, in the case of the balance sheetFinancial Statements delivered under clause (a) or (b) above, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph (a), (bii) or (c) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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, (iiiii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 Section 6.12 and (iiiiv) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements Financial Statements accompanying such certificate;
(ed) concurrently with any delivery of financial statements under paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines)[reserved];
(fe) as soon as available, but in any event no later than the end of, and no earlier than thirty (30) days prior to the commencement of end of, each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year copy of the plan and forecast (including a projected consolidated balance sheet and related statements of projected operations sheet, income statement and cash flow as statement) of the end Borrower for each month of and for such the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to the Administrative Agent;
(f) promptly following any request therefor, (x) such other information regarding the operations, material changes in ownership of Equity Interests, business affairs and setting forth financial condition of any material assumptions used Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request and (y) information and documentation reasonably requested in writing by the Administrative Agent or any Lender for purposes of preparing such budget) andcompliance with applicable “know your customer” and anti-money laundering rules and regulations, promptly when available, any significant revisions of such budgetincluding the USA PATRIOT Act and the Beneficial Ownership Regulation;
(g) promptly after any request therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if the Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and
(h) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower any Loan Party or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower to its public stockholders shareholders generally, as the case may be;
. Documents required to be delivered pursuant to clauses (a), (b) or (h) of this Section 5.01 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and shall be deemed to have been delivered on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
date (i) promptly following on which such materials are publicly available as posted on the Electronic Data Gathering, Analysis and Retrieval system (XXXXX) 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 made available by the Administrative Agent); provided that upon written request by the Administrative Agent (or any request thereforLender through the Administrative Agent) to the Borrower, such other information regarding the operations, business affairs and financial condition of (A) the Borrower or any Subsidiary, or compliance with the terms shall deliver paper copies of any Loan Document, as such documents to the Administrative Agent or such Lender until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the Borrower shall notify the Administrative Agent and each Lender (by facsimile or through Electronic System) of the posting of any such documents and provide to the Administrative Agent through Electronic System 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 by a Lender may reasonably requestfor delivery, and each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such document to it and maintaining its copies of such documents.
Appears in 2 contracts
Samples: Credit Agreement (Nerdwallet, Inc.), Credit Agreement (Nerdwallet, Inc.)
Financial Statements and Other Information. The U.S. Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year A copy of the U.S. Borrower, its ’s audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Ernst & Young LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the U.S. Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
applied (bbut subject to the last sentence of Section 1.04), as soon as available, but in any event within the earlier of (i) within 45 90 days after the end of each of the first three fiscal quarters of each fiscal year of the U.S. Borrower or (ii) five (5) Business Days after the filing of such financial statements with the SEC;
(b) A copy of the U.S. Borrower, its unaudited ’s consolidated balance sheet and related statements of operations, stockholders' equity 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 consolidated financial condition and results of operations of the U.S. Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedapplied (but subject to the last sentence of Section 1.04), subject to normal year-end year‑end audit adjustments and the absence of footnotes;
, as soon as available, but in any event within the earlier of (ci) within 10 Business Days 45 days after the end of each of the first two months three fiscal quarters of each fiscal quarter year of the Borrower, its unaudited consolidated balance sheet and related U.S. Borrower or (ii) five (5) Business Days after the filing of such financial statements of operations and cash flows as of with the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesSEC;
(dc) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower U.S. Borrower, in a form acceptable to the Administrative Agent, (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 6.10 and 6.15 6.11 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(id) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the U.S. Borrower or any Subsidiary, or compliance with the terms of any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request. All financial statements referred to in Section 5.01(a) and (b) shall be deemed to have been delivered upon the filing of such financial statements by the Borrower through the SEC’s EXXXX system or publication by the Borrower of such financial statements on its website and the receipt by the Administrative Agent of electronic notice from the Borrower with a link to such financial statements.
Appears in 2 contracts
Samples: Credit Agreement (Miller Herman Inc), Credit Agreement (Miller Herman Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and for distribution to each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed one hundred twenty (120) days after the end of each fiscal year of the Borrower), its commencing with the fiscal year ending December 31, 2022, the audited consolidated balance sheet statements of assets and related liabilities, statements of operations, stockholders' equity and changes in net assets, cash flows and schedule of investments of the Borrower and its consolidated 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 KPMG PricewaterhouseCoopers LLP or any other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as disclosed therein) applied;
(b) within 45 forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed seventy-five (75) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower), its unaudited the consolidated balance sheet statements of assets and related liabilities, statements of operations, stockholders' equity and changes in net assets, cash flows and schedule of investments of the Borrower and its consolidated 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 corresponding period or periods of the previous fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as disclosed therein) applied, subject to normal year-end audit adjustments and adjustments, the absence of footnotesfootnotes and as otherwise described therein;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) or (c) aboveof this Section 5.01, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether the Borrower has knowledge that a Default has occurred and, if a Default has occurredand is continuing, specifying the details thereof and any action which the Borrower has taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.126.01(b), 6.136.01(i), 6.14 6.01(l), 6.01(m), 6.01(n), 6.02(d), 6.02(e), 6.03(c), 6.03(d), 6.03(e), 6.03(h), 6.03(i), 6.04(d), 6.04(j), 6.05(b), 6.05(d), 6.07 and 6.15 6.12(c) or, if not in compliance, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (iii) to the extent not previously disclosed on a Form 10-K or Form 10-Q previously filed with the SEC, stating whether any change in GAAP as applied by (or in the application thereof of GAAP by) the Borrower has occurred since the date of Effective Date (but only if the Borrower's audited Borrower has not previously reported such change to the Administrative Agent and if such change has had a material effect on the financial statements referred to in Section 3.04 statements) and, if any such change has occurred, specifying the effect (unless such effect has been previously reported) as determined by the Borrower of such change on the financial statements accompanying such certificate;
(ed) concurrently with as soon as available and in any delivery event not later than the last Business Day of financial statements under paragraph the calendar month following each monthly accounting period (aending on the last day of each calendar month) aboveof the Borrower, (1) a Borrowing Base Certificate as at the last day of such accounting period, (2) if during such monthly accounting period the Borrower has declared or made any Restricted Payment pursuant to Section 6.05(d), a certificate of a Financial Officer of the accounting firm Borrower describing each such Restricted Payment and certifying that reported the conditions set forth in Section 6.05(d) were satisfied on the date of each such financial statements stating whether they Restricted Payment and (3) the Borrower’s calculation of the ratio of the Gross Borrowing Base to the Combined Debt Amount (showing the components of the Gross Borrowing Base and the Combined Debt Amount, respectively);
(e) promptly but no later than five (5) Business Days after any Financial Officer of the Borrower shall at any time have knowledge that there is a Borrowing Base Deficiency, a Borrowing Base Certificate as at the date such Person has knowledge of such Borrowing Base Deficiency indicating the amount of such Borrowing Base Deficiency as at the date such Person obtained knowledge during the course of their examination of such financial statements deficiency and the amount of any Default such Borrowing Base Deficiency as of the date not earlier than one (which certificate may be limited 1) Business Days prior to the extent required by accounting rules or guidelines)date the Borrowing Base Certificate is delivered pursuant to this paragraph;
(f) prior promptly upon receipt thereof, copies of all significant written reports submitted to management or the board of directors of the Borrower by the Borrower’s independent public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems of the Borrower or any of its Significant Subsidiaries delivered by such accountants to the commencement management or board of each fiscal year directors of the Borrower (other than the periodic reports that the Borrower’s independent auditors provide, in the ordinary course, to the audit committee of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements ’s board of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetdirectors);
(g) promptly after (and only if) the same become publicly available, copies of all periodic and other reports, proxy statements and other materials sent to all stockholders or filed by any of the Borrower or any Subsidiary Obligors with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ih) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiaryof its Subsidiaries, or compliance by the Borrower and the Obligors with the terms of any this Agreement and the other Loan DocumentDocuments, or for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act and the Beneficial Ownership Regulation (to the extent applicable), as the Administrative Agent or any Lender (acting through the Administrative Agent) may reasonably request. Notwithstanding anything in this Section 5.01 to the contrary, the Borrower shall be deemed to have satisfied the requirements of this Section 5.01 (other than Sections 5.01(c), (d), (e) and (h)) if the reports, documents and other information of the type otherwise so required thereby are publicly available when filed on XXXXX at the xxx.xxx.xxx website or any successor service provided by the SEC.
Appears in 2 contracts
Samples: Senior Secured Revolving Credit Agreement (Goldman Sachs Middle Market Lending Corp. II), Senior Secured Revolving Credit Agreement (Goldman Sachs Middle Market Lending Corp. II)
Financial Statements and Other Information. The Borrower Account Parties will furnish to the Administrative Agent and each Lender:
(a) within 90 days (or in the case of XLCA and XLFA, 120 days) after the end of each fiscal year of each Account Party, the Borrower, its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows of such Account Party and its consolidated Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal yearyear (if such figures were already produced for such corresponding period or periods) (it being understood that delivery to the Lenders of SCA's Report on Form 10-K filed with the SEC shall satisfy the financial statement delivery requirements of this paragraph (a) to deliver the annual financial statements of SCA so long as the financial information required to be contained in such Report is substantially the same as the financial information required under this paragraph (a)), all reported on by KPMG LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower such Account Party and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year of such Account Party, the Borrower, its unaudited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows of such Account Party and its consolidated 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 corresponding period or periods of the previous fiscal yearyear (if such figures were already produced for such corresponding period or periods), all certified by one a Financial Officer of its Financial Officers such Account Party as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower such Account Party and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesfootnotes (it being understood that delivery to the Lenders of SCA's Report on Form 10-Q filed with the SEC shall satisfy the financial statement delivery requirements of this paragraph (b) to deliver the quarterly financial statements of SCA so long as the financial information required to be contained in such Report is substantially the same as the financial information required under this paragraph (b);
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) or (c) aboveof this Section, a certificate signed on behalf of each Account Party by a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.126.03, 6.136.05, 6.14 6.06 and 6.15 6.07 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the any material effect of such change on the financial statements accompanying such certificate;
(ed) concurrently with any delivery of financial statements under paragraph clause (a) aboveof this Section, 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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(ge) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower such Account Party or any Subsidiary of its respective Subsidiaries with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national U.S. or other securities exchange, or distributed by the Borrower such Account Party to its public stockholders shareholders generally, as the case may be;
(hf) on the sixth Business Day concurrently with any delivery of each calendar monthfinancial statements under clause (a) or (b) of this Section, a detailed report certificate of the Consolidated Backlog a Financial Officer of SCA, setting forth on a consolidated basis for such month, measured SCA and its consolidated Subsidiaries as of the close end of business on the prior Business Dayfiscal year or quarter to which such certificate relates (i) the aggregate book value of assets which are subject to Liens permitted under Section 6.03(h) and the aggregate book value of liabilities which are subject to Liens permitted under Section 6.03(h) (it being understood that the reports required by paragraphs (a) and (b) of this Section shall satisfy the requirement of this clause (i) of this clause (f) if such reports set forth separately, in accordance with GAAP, line items corresponding to such aggregate book values) and (ii) a calculation showing the portion of each of such aggregate amounts which portion is attributable to transactions among wholly-owned Subsidiaries of SCA; and
(ig) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower SCA or any Subsidiaryof its Subsidiaries, or compliance with the terms of any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request.
Appears in 2 contracts
Samples: Credit Agreement (Security Capital Assurance LTD), Credit Agreement (Security Capital Assurance LTD)
Financial Statements and Other Information. The Borrower Company will furnish to the Administrative Agent and (who shall promptly furnish a copy to each Lender:):
(a) as soon as available, but in any event within 90 one hundred (100) days after the end of each fiscal year of the BorrowerCompany (or, its if earlier, the 10th day after such financial statements are required to be filed with the SEC), commencing with the fiscal year ending February 28, 2020, the audited consolidated balance sheet of the Company and its Consolidated Subsidiaries and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other 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, fairly in all material respects, respects the consolidated financial condition position and results of operations of the Borrower Company and the its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP;
(b) as soon as available, but in any event within 45 fifty-five (55) days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerCompany (or, its if earlier, the 10th day after such financial statements are required to be filed with the SEC), commencing with the fiscal quarter ending August 31, 2019, the unaudited consolidated balance sheet of the Company and its Consolidated Subsidiaries and related statements of operations, stockholders' equity 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 consolidated financial condition position and results of operations of the Borrower Company and the its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of certain footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate substantially in the form of Exhibit F executed by a Financial Officer of the Borrower Company (ix) certifyingcertifying as to whether, to the knowledge of such Financial Officer's knowledge Officer after due reasonable inquiry, as to whether a Default has occurred and is continuing and, if a Default has occurredso, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and containing the representations set forth in clauses 3 and 4 therein and as to the other items set forth therein, and (iiy) in the case of any such certificate delivered for any fiscal period ending on or after the Closing Date, setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 Section 6.09 and 6.15 and (iii) stating whether any change containing the representation set forth in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificateclause 5 therein;
(e) concurrently with any delivery of financial statements under paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gd) promptly after the same become publicly available, copies of all periodic annual, quarterly and other reports, current reports and proxy statements and other materials filed by the Borrower Company or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may beSEC;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ie) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any Subsidiary, or compliance with the terms of any Loan Documentthis Agreement, as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request; and
(f) promptly following any request therefor, provide information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, the Canadian AML Acts and the Beneficial Ownership Regulation. Financial statements and other information required to be delivered pursuant to Sections 5.01(a), 5.01(b) and 5.01(d) shall be deemed to have been delivered if such statements and information shall have been posted by the Company on its website or shall have been posted on IntraLinks 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 the Administrative Agent and/or the Arranger 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”).
Appears in 2 contracts
Samples: Term Loan Restatement Agreement (Constellation Brands, Inc.), Term Loan Credit Agreement (Constellation Brands, Inc.)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and (for distribution to each Lender:):
(a) within 90 days after the end of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the Securities and Exchange Commission or any other government or regulatory authority, not to exceed one hundred twenty (120) days after the end of each fiscal year of the Borrower), its the audited consolidated balance sheet and related statements statement of operations, stockholders' equity changes in net assets and cash flows of the Borrower 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 KPMG LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP (except as disclosed therein) consistently applied; provided that the requirements set forth in this clause (a) may be fulfilled by providing to the Administrative Agent the report of the Borrower to the SEC on Form 10-K for the applicable fiscal year;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed seventy-five (75) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower), its unaudited the consolidated balance sheet and related statements statement of operations, stockholders' equity changes in net assets and cash flows of the Borrower and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of 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 sheetstatements of assets and liabilities, operations, changes in net assets and cash flows, as of the end of) the corresponding period or periods of the previous fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP (except as disclosed therein) consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; provided that the requirements set forth in this clause (b) may be fulfilled by providing to the Administrative Agent the report of the Borrower to the SEC on Form 10-Q for the applicable quarterly period;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) or (c) aboveof this Section, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether the Borrower has knowledge that a Default has occurred during the applicable period and, if a Default has occurredoccurred and is continuing, 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 6.126.01, 6.136.02, 6.14 6.04 and 6.15 6.07 and (iii) stating whether any change in GAAP as applied by (or in the application thereof of GAAP by) the Borrower has occurred since the date of Effective Date (but only if the Borrower's audited Borrower has not previously reported such change to the Administrative Agent and if such change has had a material effect on the financial statements referred to in Section 3.04 statements) and, if any such change has occurred, specifying the effect (unless such effect has been previously reported) as determined by the Borrower of such change on the financial statements accompanying such certificate; provided that the requirements set forth in this clause (c)(iii) may be fulfilled by providing to the Administrative Agent the report of the Borrower to the SEC on Form 10-Q for the applicable quarterly period;
(d) as soon as available and in any event not later than 20 days after the end of each monthly accounting period (ending on the last day of each calendar month) of the Borrower and its Subsidiaries, a Borrowing Base Certificate as at the last day of such accounting period which shall include the ratio of the Borrowing Base to the Combined Debt Amount (showing the components of the Combined Debt Amount); provided that if during such monthly accounting period the Borrower had declared or made any Restricted Payment pursuant to Section 6.05(d), such Borrowing Base Certificate shall certify that the condition set forth in Section 6.05(d)(x) was satisfied on the date of each such Restricted Payment;
(e) concurrently with promptly but no later than five (5) Business Days after any delivery Responsible Officer of financial statements under paragraph (a) abovethe Borrower shall at any time have knowledge that there is a Borrowing Base Deficiency, a certificate Borrowing Base Certificate as at the date such Responsible Officer of the accounting firm that reported on Borrower has knowledge of such financial statements stating whether they Borrowing Base Deficiency indicating the amount of the Borrowing Base Deficiency as at the date such Responsible Officer of the Borrower obtained knowledge during the course of their examination of such financial statements deficiency and the amount of any Default (which certificate may be limited the Borrowing Base Deficiency as of the date not earlier than one Business Day prior to the extent required by accounting rules or guidelines)date the Borrowing Base Certificate is delivered pursuant to this paragraph;
(f) prior promptly upon receipt thereof, copies of all significant written reports submitted to management or the board of directors of the Borrower by the Borrower’s independent public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems of the Borrower or any of its Subsidiaries delivered by such accountants to the commencement management or board of each fiscal year directors of the Borrower (other than the periodic reports that the Borrower’s independent auditors provide, in the ordinary course, to the audit committee of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements ’s board of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetdirectors);
(g) 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 of the Subsidiary Guarantors with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ih) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiaryof its Subsidiaries, or compliance with the terms of any this Agreement and the other Loan DocumentDocuments, as the Administrative Agent or any Lender (acting through the Administrative Agent) may reasonably request.
(i) Borrower and each Lender acknowledge that certain of the Lenders may be Public Lenders and, if documents or notices required to be delivered pursuant to this Section 5.01 or otherwise are being distributed through IntraLinks/IntraAgency, SyndTrak or another relevant website or other information platform (the “Platform”), any document or notice that Borrower has indicated contains Non-Public Information shall not be posted by Administrative Agent on that portion of the Platform designated for such Public Lenders. Bxxxxxxx agrees to clearly designate all information provided to Administrative Agent by or on behalf of Borrower or any of its Subsidiaries which is suitable to make available to Public Lenders. If Bxxxxxxx has not indicated whether a document or notice delivered pursuant to this Section 5.01 contains Non-Public Information, the Administrative Agent reserves the right to post such document or notice solely on that portion of the Platform designated for Lenders who wish to receive material Non-Public Information with respect to Borrower, its Subsidiaries and their Securities (as such term is defined in Section 5.13 of this Agreement).
(j) Notwithstanding anything to the contrary herein, the requirements to deliver documents set forth in Section 5.01(a), (b) and (g) will be fulfilled by filing by the Borrower of the applicable documents for public availability on the SEC’s Electronic Data Gathering and Retrieval system; provided, that the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents.
Appears in 2 contracts
Samples: Senior Secured Revolving Credit Agreement (Sixth Street Specialty Lending, Inc.), Senior Secured Revolving Credit Agreement (Sixth Street Specialty Lending, Inc.)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the Borrower, its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Deloitte & Touche LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedapplied for the period covered thereby;
(b) within 45 forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedapplied for the period covered thereby, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 five (5) Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period any delivery or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly, in all material respects, the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any deemed delivery of financial statements under paragraph clause (a), ) or (b) above, and in any event within the ninety (90) or forty-five (c45) aboveday periods specified therein, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 and 6.15 Section 6.11 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gd) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower to its public stockholders shareholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ie) 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 any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to clauses (a), (b) and (d) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System; provided that the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the filing 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 clause (c) of this Section 5.01 to the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Par Pharmaceutical Companies, Inc.), Credit Agreement (Par Pharmaceutical Companies, Inc.)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower, (i) its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Xxxxxx Xxxxxxxx LLP or other independent public accountants of recognized national standing (without a "going concern" or like modification, qualification or exception and without any modification, qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied and (ii) its consolidating balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, (i) its unaudited consolidated balance sheet and related statements of operations, 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 and (ii) its consolidating balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis or consolidating basis, as the case may be, in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 of the Interest Coverage Ratio as at the last day of the fiscal quarter or fiscal year, as the case may be, in respect of which such financial statements are delivered, and demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 Section 6.12 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(ed) concurrently with any delivery of financial statements under paragraph 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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(ge) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders shareholders generally, as the case may be;
(hf) on as soon as available and in any event within 5 Business Days after the sixth Business Day end of each calendar monthmonthly accounting period, a detailed report Borrowing Base Certificate certifying, in the case of the Borrower, as to the Consolidated Backlog for Borrowing Base, and, in the case of each First Tier Subsidiary, as to its Borrowing Base, as at the last day of such monthaccounting period;
(g) as soon as available, measured as and in any event within 90 days, after the end of each fiscal year of the close Borrower a report (prepared at the expense of business on the prior Business DayBorrower) of an independent collateral auditor (which may be, or be affiliated with, one of the Lenders) approved by the Administrative Agent with respect to the Receivables and Inventory components included in the Consolidated Borrowing Base as at the end of such fiscal year which report shall indicate that, based upon a review by such auditors of the Receivables (including, without limitation, verification with respect to the amount, aging, identity and credit of the respective account debtors and the billing practices of the Borrower and its Subsidiaries) and Inventory (including, without limitation, verification as to the value, location and respective types), the information set forth in the Borrowing Base Certificate delivered by the Borrower as at the end of such fiscal year is accurate and complete in all material respects; and
(ih) 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 any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request.
Appears in 2 contracts
Samples: Five Year Credit Agreement (Smithfield Foods Inc), 364 Day Credit Agreement (Smithfield Foods Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the BorrowerBorrower (or, if earlier, by two (2) Business Days after the date that the Annual Report on Form 10-K of the Borrower for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG PricewaterhouseCoopers LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerBorrower (or, if earlier, by two (2) Business Days after the date that the Quarterly Report on Form 10-Q of the Borrower for such fiscal quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers or other executive officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end and audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer or other executive officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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, thereto and (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate6.11;
(ed) concurrently with as soon as available, but in any delivery of financial statements under paragraph event not more than ninety (a90) above, a certificate of days after 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 (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement end of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year copy of the plan and forecast (including a projected consolidated and consolidating balance sheet sheet, income statement and related statements of projected operations and cash funds flow as statement) of the end Borrower for each quarter of and for such the upcoming fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetin form reasonably satisfactory to the Administrative Agent;
(ge) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC or such Governmental Authority, as applicable, or with any national securities exchange, or distributed by the Borrower to its public stockholders shareholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(if) 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 any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to clauses (a), (b) and (e) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System; provided that the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent (which notice the Administrative Agent shall promptly provide to each Lender) of the filing of any such documents and, if requested by the Administrative Agent, promptly 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 clause (c) of this Section 5.01 to the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Quality Systems, Inc), Credit Agreement (Quality Systems, Inc)
Financial Statements and Other Information. The Borrower Company will furnish deliver to the Administrative Agent Prudential and each Lenderholder of Notes that is an Institutional Investor:
(a) within 90 one hundred (100) days after the end of each fiscal year of the BorrowerCompany (or, if earlier, within five (5) days after the date that the Annual Report on Form 10-K of the Company for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG PricewaterhouseCoopers LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 fifty-five (55) days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerCompany (or, if earlier, by the date that the Quarterly Report on Form 10-Q of the Company for such fiscal quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its unaudited consolidated balance sheet and related statements of operations, 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 Senior Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Senior Financial Officer of the Borrower Company (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether a Default or Event of Default has occurred and is continuing and, if a Default or Event of Default has occurredoccurred that is continuing, 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 6.12, 6.13, 6.14 and 6.15 Section 10.9 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's Company’s audited financial statements for the fiscal year ended September 30, 2011 or the Company’s quarterly financial statements for the fiscal quarter ended December 31, 2011, March 31, 2012 or September 30, 2012 referred to in Section 3.04 5.5 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gd) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower Company or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower Company to its public stockholders shareholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ie) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any Subsidiary, or compliance with the terms of any Loan Documentthis Agreement, as the Administrative Agent or any Lender a holder of Notes may reasonably request. Documents required to be delivered pursuant to clauses (a), (b) and (d) of this Section 9.1 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are (i) filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System; (ii) posted or the Company provides a link thereto on xxxx://xxx.xxxxxxxxxxx.xxx; or (iii) posted on the Company’s behalf on an Internet or intranet website, if any, to which Prudential and the holders of Notes have access (whether a commercial, third-party website or whether sponsored by the Company).
Appears in 2 contracts
Samples: Private Shelf Agreement (Hillenbrand, Inc.), Private Shelf Agreement (Hillenbrand, Inc.)
Financial Statements and Other Information. The Borrower Company will furnish to the Administrative Agent and each Agent, on behalf of each Lender:
(a) within 90 days after the end of each fiscal year of the BorrowerCompany, commencing with the fiscal year ending February 2, 2019, its audited consolidated balance sheet and related consolidated statements of operations, stockholders' shareholders’ equity and cash flows as of the end of and for such fiscal year, setting forth in each case in comparative form the figures for the previous prior fiscal year, all reported on audited by KPMG and accompanied by the opinion of Deloitte & Touche LLP or other another independent registered public accountants accounting firm of recognized national standing (without a "“going concern" ” or like qualification qualification, exception or emphasis (other than any qualification, exception or emphasis with respect to or resulting from an upcoming scheduled final maturity of any Loans occurring within one year from the time such opinion is delivered) and without any qualification qualification, exception or exception emphasis as to the scope of such audit) to the effect that such consolidated financial statements present fairly, in all material respects, the consolidated financial condition and position, results of operations and cash flows of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis as of the end of and for such year in accordance with GAAP consistently appliedGAAP;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerCompany, its unaudited condensed consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and such fiscal quarter, the related condensed consolidated statements of operations for such fiscal quarter and the then elapsed portion of the fiscal year and the related statements of cash flows for the then elapsed portion of the fiscal year, setting forth in each case setting forth 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 prior fiscal year, all certified by one a Financial Officer of its Financial Officers the Company as presenting fairly fairly, in all material respects respects, the consolidated financial condition and position, results of operations and cash flows of the Borrower Company and the its consolidated 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 consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of certain footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any each delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of completed Compliance Certificate signed by a Financial Officer of the Borrower Company, (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether a Default has occurred and is continuing on such date and, if a Default has occurredoccurred and is continuing on such date, 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 6.12, 6.13, 6.14 and 6.15 Section 6.06 and (iii) stating whether if any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements consolidated balance sheet of the Company most recently theretofore delivered under clause (a) or (b) above (or, prior to the first such delivery, referred to in Section 3.04 and3.04(a)) that has had, if any such change has occurredor would reasonably be expected to have, a significant effect on the calculations of the Leverage Ratio or Consolidated Net Tangible Assets, specifying the effect nature of such change and the effect thereof on the financial statements accompanying such certificatecalculations;
(e) concurrently with any delivery of financial statements under paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gd) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower Company or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, SEC or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ie) promptly following after any request therefor, such other information regarding the operations, business affairs affairs, assets, liabilities (including contingent liabilities) and financial condition of the Borrower Company or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative any Agent or any Lender (through the Applicable Facility Agent) may reasonably requestrequest in writing. Information required to be delivered pursuant to clause (a), (b) or (e) of this Section shall be deemed to have been delivered to the Lenders if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the Agents on an IntraLinks or similar site to which the Lenders have been granted access or shall be available on the website of the SEC at xxxx://xxx.xxx.xxx. Information required to be delivered pursuant to this Section to any Agent may also be delivered by electronic communications pursuant to procedures approved by such Agent.
Appears in 2 contracts
Samples: Credit Agreement (Marvell Technology Group LTD), Credit Agreement (Marvell Technology Group LTD)
Financial Statements and Other Information. The Parent and the Borrower will furnish to the Administrative Agent and each LenderAgent:
(a) within 90 120 days after the end of each fiscal year of the BorrowerParent, its the audited consolidated balance sheet of the Parent and its consolidated subsidiaries and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Xxxxxx Xxxxxxxx LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Parent and the Subsidiaries 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 BorrowerParent and its consolidated subsidiaries, its unaudited the consolidated balance sheet of the Parent and its consolidated subsidiaries and related statements of operations, stockholders' equity 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 consolidated financial condition and results of operations of the Borrower Parent and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days 120 days after the end of each fiscal year of the Borrower, the consolidated balance sheet of the Borrower and its consolidated Subsidiaries and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(d) within 45 days after the end of each of the first two months three fiscal quarters of each fiscal quarter year of the BorrowerBorrower and its consolidated Subsidiaries, its unaudited the 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 month 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(de) concurrently with any delivery of the Parent's and Borrower's financial statements under paragraph clause (a) , (b), (bc) or and (cd) above, a certificate of a Financial Officer of each of the Parent and the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 and 6.15 6.11 through 6.20 and (iii) stating whether any change in GAAP or in the application thereof that materially affects the Parent's or the Borrower's financial statements accompanying such certificate (it being understood that any change that would affect compliance with any covenant set forth herein or the Applicable Rate shall be considered material) has occurred since the date of the Parent's or the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificatecertificate (it being understood that such certificate may also satisfy the requirements of Section 5.03(b) and (c), but any such certificate intended to satisfy both those requirements and the requirements of this clause (e) shall be delivered to both the Administrative Agent and the Collateral Agent);
(ef) concurrently with any delivery of financial statements under paragraph clause (a) or (c) 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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(fg) prior to promptly after the commencement same become available but in any event within 120 days after the end of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations an annual operating and cash flow as of budget in reasonable detail for the end of and for such current fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetupdated financial projections through the fiscal year during which the Maturity Date is scheduled to occur;
(gh) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Parent, 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, or with any national securities exchange, or financial information or other material information distributed by the Parent or the Borrower to its public stockholders either of their shareholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Parent, the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative either Agent or any Lender may reasonably request.
Appears in 2 contracts
Samples: Credit Agreement (Jato Communications Corp), Credit Agreement (Jato Communications Corp)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and for distribution to each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed one hundred twenty (120) days after the end of each fiscal year of the Borrower), its commencing with the fiscal year ending December 31, 2022, the audited consolidated balance sheet statements of assets and related liabilities, statements of operations, stockholders' equity and changes in net assets, cash flows and schedule of investments of the Borrower and its consolidated 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 KPMG LLP or any other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as disclosed therein) applied;
(b) within 45 forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed seventy-five (75) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower), its unaudited the consolidated balance sheet statements of assets and related liabilities, statements of operations, stockholders' equity and changes in net assets, cash flows and schedule of investments of the Borrower and its consolidated 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 corresponding period or periods of the previous fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as disclosed therein) applied, subject to normal year-end audit adjustments and adjustments, the absence of footnotesfootnotes and as otherwise described therein;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) or (c) aboveof this Section 5.01, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether the Borrower has knowledge that a Default has occurred and, if a Default has occurredand is continuing, specifying the details thereof and any action which the Borrower has taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.126.01(b), 6.136.01(i), 6.14 6.01(l), 6.01(m), 6.01(n), 6.02(d), 6.02(e), 6.03(c), 6.03(d), 6.03(e), 6.03(h), 6.03(i), 6.04(d), 6.04(j), 6.05(b), 6.05(d), 6.05(e), 6.05(f), 6.07 and 6.15 6.12(c) or, if not in compliance, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (iii) to the extent not previously disclosed on a Form 10-K or Form 10-Q previously filed with the SEC, stating whether any change in GAAP as applied by (or in the application thereof of GAAP by) the Borrower has occurred since the date of Effective Date (but only if the Borrower's audited Borrower has not previously reported such change to the Administrative Agent and if such change has had a material effect on the financial statements referred to in Section 3.04 statements) and, if any such change has occurred, specifying the effect (unless such effect has been previously reported) as determined by the Borrower of such change on the financial statements accompanying such certificate;
(ed) concurrently with as soon as available and in any delivery event not later than the last Business Day of financial statements under paragraph the calendar month following each monthly accounting period (aending on the last day of each calendar month) aboveof the Borrower, (1) a Borrowing Base Certificate as at the last day of such accounting period presenting (i) the Borrower’s computation (and including the rationale for any industry reclassification) of the Borrowing Base, (ii) [reserved], (iii) (A) the quantity sold of any Portfolio Investment previously included in the Borrowing Base in such accounting period, (B) the value assigned to each such Portfolio Investment as of the prior accounting period, (C) the weighted average sale price of each such Portfolio Investment sold and (D) the variance between (B) and (C) and (iv) the aggregate amount of all accrued paid-in-kind interest and all paid-in-kind interest collected, in each case, during such accounting period on Portfolio Investments included in the Borrowing Base; and (2) if during such monthly accounting period the Borrower has declared or made any Restricted Payment pursuant to Section 6.05(d), a certificate of a Financial Officer of the accounting firm Borrower describing each such Restricted Payment and certifying that reported the conditions set forth in Section 6.05(d) were satisfied on the date of each such financial statements stating whether they Restricted Payment;
(e) promptly but no later than five (5) Business Days after any Financial Officer of the Borrower shall at any time have knowledge that there is a Borrowing Base Deficiency, a Borrowing Base Certificate as at the date the Borrower has knowledge of such Borrowing Base Deficiency indicating the amount of such Borrowing Base Deficiency as at the date the Borrower obtained knowledge during the course of their examination of such financial statements deficiency and the amount of any Default such Borrowing Base Deficiency as of the date not earlier than one (which certificate may be limited 1) Business Days prior to the extent required by accounting rules or guidelines)date the Borrowing Base Certificate is delivered pursuant to this paragraph;
(f) prior promptly upon receipt thereof, copies of all significant written reports submitted to management or the board of directors of the Borrower by the Borrower’s independent public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems of the Borrower or any of its Significant Subsidiaries delivered by such accountants to the commencement management or board of each fiscal year directors of the Borrower (other than the periodic reports that the Borrower’s independent auditors provide, in the ordinary course, to the audit committee of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements ’s board of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetdirectors);
(g) promptly after (and only if) the same become publicly available, copies of all periodic and other reports, proxy statements and other materials sent to all stockholders or filed by any of the Borrower or any Subsidiary Obligors with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ih) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiaryof its Subsidiaries, or compliance by the Borrower and the Obligors with the terms of any this Agreement and the other Loan DocumentDocuments, or for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act and the Beneficial Ownership Regulation (to the extent applicable), as the Administrative Agent or any Lender (acting through the Administrative Agent) may reasonably request. Notwithstanding anything in this Section 5.01 to the contrary, the Borrower shall be deemed to have satisfied the requirements of this Section 5.01 (other than Sections 5.01(c), (d), (e) and (h)) if the reports, documents and other information of the type otherwise so required thereby are publicly available when filed on XXXXX at the xxx.xxx.xxx website or any successor service provided by the SEC.
Appears in 2 contracts
Samples: Senior Secured Revolving Credit Agreement (Blue Owl Capital Corp), Senior Secured Revolving Credit Agreement (Blue Owl Credit Income Corp.)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and for delivery to each Lender:
(a) within on or before the earlier of (i) the date by which the Annual Report on Form 10-K of the Borrower (without giving effect to any extension thereof) for each fiscal year is required to be filed under the rules and regulations of the SEC and (ii) 90 days after the end of each such fiscal year of the Borroweryear, its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Ernst & Young LLP or other independent registered public accountants accounting firm 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within on or before the earlier of (i) the date by which the Quarterly Report on Form 10-Q of the Borrower for each of the first three fiscal quarters of each fiscal year is required to be filed under the rules and regulations of the SEC (without giving effect to any extension thereof) and (ii) 45 days after the end of each of the first three fiscal quarters of each such fiscal year of the Borroweryear, its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after not later than the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 date by one of its Financial Officers as presenting fairly, in all material respects, the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of which financial statements are required to be delivered under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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, thereto and (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate6.05;
(e) concurrently with any delivery of financial statements under paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(id) 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 or with the requirements of the Patriot Act or any Loan Documentother “know your customer” or similar laws or regulations, as the Administrative Agent or any Lender may reasonably requestrequest (it being understood that the Borrower shall not be required to provide any information which is subject to confidentiality restrictions, the nature of which prohibit such disclosure notwithstanding the provisions of Section 9.12 hereof); and
(e) all information, documents and other materials that the Borrower is obligated to deliver to the Administrative Agent under this Agreement, including all notices, requests, and other reports, certificates and other information materials, but excluding any such information that (i) is required to be delivered pursuant to clauses (a) and (b) of this Section 5.01, (ii) relates to a request for a new, or a conversion of an existing, Borrowing or other extension of credit (including any Interest Election Request or Interest Period relating thereto), (iii) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (iv) provides notice of any Default or Event of Default, or (v) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing or other extension of credit hereunder (all such non-excluded information being referred to herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium in a format acceptable to the Administrative Agent. In addition, the Borrower agrees to continue to provide the Communications to the Administrative Agent in the manner specified in this Agreement, but only to the extent requested by the Administrative Agent. The Borrower further agrees that the Administrative Agent may make the Communications available to the Lenders by posting the Communications on Intralinks or a substantially similar electronic transmission system, access to which is controlled by the Administrative Agent (the “Platform”). Reports required to be delivered pursuant to clauses (a) and (b) of this Section 5.01 shall be deemed to have been delivered on the date on which the Borrower posts such reports on its website at xxx.xx.xxx or when such reports are posted on the SEC’s website at xxx.xxx.xxx; provided that the Borrower shall deliver to the Administrative Agent, not later than the date on which financial statements are required to be delivered under clause (b) above, the certification of a Financial Officer, as required by clause (b).
Appears in 2 contracts
Samples: Five Year Credit Agreement (Hp Inc), Credit Agreement (Hewlett Packard Enterprise Co)
Financial Statements and Other Information. The Dutch Borrower will furnish to the Administrative Agent and Agent, on behalf of each Lender:
(a) within 90 on or before the date that is (i) with respect to the Fiscal Year ending December 31, 2012, 120 days after the end of such Fiscal Year and (ii) thereafter, 95 days after the end of each fiscal year Fiscal Year of the Dutch Borrower, its audited consolidated balance sheet and related statements of operations, stockholders' equity income and cash flows of the Dutch Borrower as of the end of and for such year, and related notes thereto, setting forth in each case in comparative form the figures for the previous fiscal yearFiscal Year and accompanied by a customary “management discussion & analysis” section, all reported on by KPMG PricewaterhouseCoopers LLP or other 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) and certified by a Financial Officer, in each case, to the effect that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial condition as of the end of and for such year and results of operations and cash flows of the Dutch Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP IFRS consistently applied;
(b) within 45 on or before the date that is (i) with respect to the fiscal quarter ending March 31, 2013, 60 days after the end of each such fiscal quarter and (ii) thereafter, 50 days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerFiscal Year, its unaudited consolidated balance sheet and related statements of operations, stockholders' equity income and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal yearFiscal 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 yearFiscal Year, all certified by one of its a Financial Officers Officer as presenting fairly in all material respects the consolidated 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 Dutch Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP IFRS consistently applied, subject to normal year-end audit adjustments and the absence of footnotesfootnotes and accompanied by a customary “management discussion & analysis”;
(c) within 10 Business Days after simultaneously with the end delivery of each set of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet financial statements referred to in clauses (a) and related statements of operations and cash flows as of the end of and for such month 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 ofb) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly, in all material respectsabove, the related consolidating financial statements reflecting adjustments necessary (as determined by the Dutch Borrower in good faith) to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesstatements;
(d) concurrently simultaneously with any delivery of financial statements under paragraph (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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) if applicable as of the last day of the Test Period most recently ended for which financial statements were required to be delivered under paragraph (a) or (b) above setting forth reasonably detailed calculations demonstrating compliance with Sections the covenant contained in Section 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date case of the Borrower's audited financial statements referred to in Section 3.04 anddelivered under paragraph (a) above, if any such change has occurred, specifying the effect of such change on (A) beginning with the financial statements accompanying for the first full Fiscal Year following the Effective Date, setting forth a reasonably detailed calculation of Excess Cash Flow for such certificateFiscal Year and (B) setting forth a reasonably detailed calculation of the Available Free Cash Flow Amount as of the end of such Fiscal Year;
(e) concurrently with any not later than five days after the delivery of such financial statements for such Fiscal Year under paragraph (a) above, a customary certificate of the accounting firm that reported on such financial statements stating whether they it obtained knowledge during the course of their its examination of such financial statements of any Default relating to Section 6.12 and, if such knowledge has been obtained, describing such Default (which certificate may be limited to the extent required by accounting rules or guidelinesguidelines and, if applicable, the internal policies of the applicable accounting firm consistently applied);
(f) prior to not later than 90 days after the commencement of each fiscal year Fiscal Year of the BorrowerBorrower (beginning with the Fiscal Year ending December 31, 2013, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet the Dutch Borrower and related statements of projected operations and cash flow as of the end of and its Subsidiaries for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetFiscal Year;
(g) promptly after the same become publicly upon their becoming available, copies of (i) all periodic and other financial statements, reports, notices and proxy statements sent or made available generally by the Dutch Borrower to its debt security holders acting in such capacity or by any Subsidiary of the Dutch Borrower to its bondholders or holders of any other of its debt securities acting in such capacity, (ii) all regular and other materials periodic reports and all registration statements and prospectuses, if any, filed by the Dutch Borrower or any Subsidiary of its Restricted Subsidiaries with any securities exchange or with the Securities and Exchange Commission, SEC or any other Governmental Authority succeeding Authority, and (iii) all press releases and other statements made available generally by the Dutch Borrower or any of its Restricted Subsidiaries to any or all the public concerning material developments in the business of the functions Dutch Borrower or any of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may beRestricted Subsidiaries;
(h) on simultaneous with any delivery of financial statements under paragraph (a) above or promptly upon request, copies of (i) all reports prepared in order to comply with the sixth Business Day of each calendar month, a detailed report then current statutory or auditing requirements in relation to all pension schemes operated by or maintained for the benefit of the Consolidated Backlog for Dutch Borrower or any Subsidiary and/or any of their (former) directors and employees (as applicable either to the trustees of any such month, measured as pension scheme or to the Dutch Borrower or any of the close of business on the prior Business Dayits Subsidiaries) and (ii) actuarial reports in relation to all such pension schemes; and
(i) promptly following any request therefor, such other reasonably available information regarding the operations, business affairs and financial condition of the Dutch Borrower or any Subsidiaryof its Restricted Subsidiaries, compliance by the Dutch Borrower or compliance any of its Restricted Subsidiaries with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request in writing. Documents required to be delivered pursuant hereto may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Dutch Borrower posts such documents or, in the case of documents required to be delivered pursuant to Sections 5.01(a) and (b) only, provides a link thereto on the Dutch 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 documents are posted (or delivered to the Administrative Agent for posting) on the Dutch 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 Dutch Borrower shall deliver paper copies of such documents to the Administrative Agent upon its reasonable request and (ii) the Dutch Borrower shall notify the Administrative Agent (by facsimile 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. Each Borrower hereby acknowledges that (a) the Administrative Agent, the Joint Lead Arrangers, the Joint Bookrunners and/or the Co-Arrangers may make available to the Lenders materials and/or information provided by or on behalf of the Dutch 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 MNPI, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each 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 or otherwise designating in writing Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Lead Arrangers, the Joint Bookrunners, the Co-Arrangers and the Lenders to treat such Borrower Materials as not containing any MNPI (although it may be sensitive and proprietary) (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.13); (y) all Borrower Materials marked or otherwise designated in writing as “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and (z) the Administrative Agent, the Joint Lead Arrangers, the Joint Bookrunners and the Co-Arrangers may treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, the Borrowers shall be under no obligations to xxxx any Borrower Materials “PUBLIC.” If either Borrower issues any debt or equity securities pursuant to a public offering or Rule 144A or other private placement, in connection with (and prior to) the issuance of such securities, the Dutch Borrower will publicly disclose (or otherwise disclose in an appropriate manner for the type of offering, including in the related prospectus or other offering document for the issuance of such securities) all Information that has been made available to Public Lenders that constitutes material non public information (within the meaning of United States federal, state or other applicable securities laws) on the date of such disclosure.
Appears in 2 contracts
Samples: Credit Agreement (Constellium Holdco B.V.), Credit Agreement (Constellium Holdco B.V.)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the BorrowerBorrower (or, if earlier, by the date that the Annual Report on Form 10-K of the Borrower for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Ernst & Young LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerBorrower (or, if earlier, by the date that the Quarterly Report on Form 10-Q of the Borrower for such fiscal quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 and 6.15 Section 6.05 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gd) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders shareholders generally, as the case may be;
(he) on promptly after Xxxxx’x or S&P shall have announced a change in the sixth Business Day applicable rating established or deemed to have been established for the Index Debt Rating, written notice of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Dayrating change; and
(if) 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 any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to clauses (a), (b) and (d) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the compliance certificates required by clause (c) of this Section 5.01 to the Administrative Agent.
Appears in 2 contracts
Samples: Term Loan Agreement (Lam Research Corp), Term Loan Agreement (Lam Research Corp)
Financial Statements and Other Information. The Borrower will furnish Company shall deliver to each Investor upon the request of that Investor (so long as such Investor holds any shares of Preferred Stock or any Underlying Common Stock):
(i) within thirty (30) days after the end of each monthly accounting period in each fiscal year, unaudited consolidated statements of income or operations, stockholders’ equity (or the equivalent) and cash flows of the Company and its subsidiaries on a combined basis for such monthly period and for the period from the beginning of the fiscal year to the Administrative Agent end of such month, and an unaudited consolidated balance sheet of the Company and its subsidiaries on a combined basis as of the end of such monthly period, setting forth for each Lender:monthly accounting period in each fiscal year 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, consistently applied;
(aii) within 90 one hundred twenty (120) days after the end of each fiscal year year, consolidated statements of income or operations, stockholders’ equity (or the equivalent) and cash flows of the BorrowerCompany and its subsidiaries on a combined basis for such fiscal year, its audited and a consolidated balance sheet of the Company and related statements of operations, stockholders' equity and cash flows its subsidiaries on a combined basis 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 KPMG LLP or other 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 consolidated financial condition and results of operations of the Borrower and the 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 Borrower, its unaudited consolidated balance sheet and related statements of operations, 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 comparisons to the figures for Company’s annual budget and to the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous preceding fiscal year, all certified prepared in accordance with GAAP, consistently applied and accompanied by one (a) an unqualified opinion of the Company’s accounting firm (selected by the Board, but subject to the reasonable approval of the holders of a majority of the Preferred Stock if such firm is not a “Big Four” accounting firm) and (b) a copy of such firm’s annual management letter to the Company’s audit committee;
(iii) promptly after receipt by the Company, statements of income or operations, stockholders’ equity (or the equivalent) and cash flows of each Person in which the Company has a Long-Term Investment;
(iv) promptly after receipt by the Company, any other financial statements or material reports concerning each Person in which the Company has a Long-Term Investment;
(v) promptly upon receipt thereof, any additional reports, management letters or other detailed information concerning significant aspects of the Company’s or any of its Financial Officers subsidiaries’ operations or financial affairs given to the Company by its independent accountants (and not otherwise contained in other materials provided hereunder);
(vi) no later than 60 calendar days following the commencement of each fiscal year, an annual budget and operating plan prepared on a quarterly basis for the Company and its subsidiaries for such fiscal year (displaying anticipated statements of income and cash flows and balance sheets and approved by the Board), and promptly upon preparation thereof any other significant budgets or operating plans prepared by the Company and any revisions of such annual or other budgets or operating plans, and within thirty (30) days after any quarterly period in which there is a material adverse deviation from the annual budget, a certificate explaining the deviation and what actions the Company has taken and proposes to take with respect thereto;
(vii) promptly after the discovery or receipt of notice of any noncompliance or default under any material agreement to which it or any of its subsidiaries is a party or any material adverse change, event or circumstance affecting the Company or any of its subsidiaries (including the filing of any material litigation against the Company or any of its subsidiaries or the existence of any known material dispute with any Person which involves a reasonable likelihood of such litigation being commenced), notice (written or unwritten) thereof which specifies the nature and period of existence thereof and what actions the Company and/or its subsidiaries have taken and propose to take with respect thereto; and (viii) with reasonable promptness, such other financial data and information (including regulatory/compliance information) concerning the Company and its subsidiaries as presenting any such Investor may reasonably request; provided that the Company shall not be obligated to provide any documents or information to an Investor if (i) the Company reasonably determines in good faith that such documents or information is a trade secret or confidential information (unless covered by an enforceable confidentiality agreement, in form acceptable to the Company) or (ii) the Company’s counsel determines that such disclosure would be reasonably likely to adversely affect the attorney-client privilege between the Company and its counsel. Each of the financial statements referred to in subparagraphs (i) and (ii) above shall present fairly in all material respects the consolidated financial condition and operating results of operations the Company and its subsidiaries as and to the extent specified above as of the Borrower dates and for the Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedperiods set forth therein, subject in the case of the unaudited financial statements to changes resulting from normal year-end audit adjustments for recurring accruals (none of which would, alone or in the aggregate, be materially adverse to the financial condition, operating results, value, assets, operations or business prospects of the Company and its subsidiaries taken as a whole) of the types included in audited financials from prior fiscal years and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph (a), (b) or (c) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 footnotes with respect thereto. Except as otherwise required by law or judicial order or decree or by any governmental agency or authority, each Person entitled to receive information regarding the Company and its subsidiaries under this Paragraph 1A or Paragraph 1B below shall use the same standards and controls which such Person uses to maintain the confidentiality of its own confidential information (iibut in no event less than reasonable care) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in to maintain the application thereof has occurred since the date confidentiality of all nonpublic information of the Borrower's audited financial statements referred Company and its subsidiaries obtained by it pursuant to this Paragraph 1A or Paragraph 1B below; provided that each such Person may disclose such information in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently connection with any delivery of financial statements under paragraph (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 proposed sale or transfer of any Default (which certificate may Preferred Stock or Underlying Common Stock if such Person’s transferee agrees in writing to be limited to bound by the extent required provisions hereof. For purposes of this Agreement, all holdings of Preferred Stock or Underlying Common Stock by accounting rules or guidelines);
(f) prior to the commencement Persons who are affiliates of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used other shall be aggregated for purposes of preparing such budget) andmeeting any threshold tests under this Agreement and the Registration Agreement. Notwithstanding anything to the contrary herein, promptly when availableXxxxxx Permanente Ventures, any significant revisions of such budget;
(g) promptly after the same become publicly availableLLC - Series A, copies of all periodic Xxxxxx Permanente Ventures, LLC - Series B 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 The Permanent Federation LLC - Series J shall be deemed to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day be affiliates of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably requestother.
Appears in 2 contracts
Samples: Investor Rights Agreement (Health Catalyst, Inc.), Investor Rights Agreement (Health Catalyst, Inc.)
Financial Statements and Other Information. The Borrower Borrowers will furnish to the Administrative Agent Agent, on behalf of each Lender and, in the case of clauses (e), (f) and each Lender(g), to the Ad Hoc Committee Advisors:
(a) within 90 days after the end of each fiscal year of the Parent Borrower, its audited consolidated balance sheet and related consolidated statements of operations, stockholders' comprehensive income, equity and cash flows as of the end of and for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on certified by KPMG LLP or other independent public accountants a Financial Officer 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) Parent Borrower to the effect that such consolidated financial statements present fairly, in all material respects, the consolidated financial condition and position, results of operations and cash flows of the Parent Borrower and its consolidated Subsidiaries as of the Subsidiaries end of and for such fiscal year on a consolidated basis in accordance with GAAP consistently appliedGAAP;
(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 operations, stockholders' equity and cash flows as of the end of such fiscal quarter, the related consolidated statements of operations and comprehensive income for such fiscal quarter and the then elapsed portion of the fiscal year and the related consolidated statement of cash flows for 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 a Financial Officer of its Financial Officers the Parent Borrower as presenting fairly fairly, in all material respects respects, the consolidated financial condition and position, results of operations and cash flows of the Parent Borrower and its consolidated Subsidiaries as of the Subsidiaries end of and for such fiscal quarter and such portion of the fiscal year on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days 30 days after the end of each of the first two fiscal months of each fiscal quarter of the BorrowerCompany, its unaudited the consolidated balance sheet and related statements of operations and cash flows comprehensive income of the Company as of the end of and for such fiscal month and the then elapsed portion of the fiscal year and the related consolidated statement of cash flows of the Company for 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 a Financial Officer of its Financial Officers the Company as presenting fairly, fairly in all material respectsrespects the financial position, the consolidated financial condition and results of operations and cash flows of the Borrower Company and its consolidated Subsidiaries as of the Subsidiaries end of and for such fiscal month and such portion of the fiscal year on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotesfootnotes (it being understood and agreed that any adjustments reflected in such monthly financial statements may differ (in part or entirely) from any adjustments reflected in the financial statements delivered in the foregoing clauses (a) or (b);
(d) concurrently with any each delivery of financial statements under paragraph clause (a), (b) or (c) above, a certificate of completed Compliance Certificate signed by a Financial Officer of the Borrower Parent Borrower, (i) certifying, in the case of the financial statements delivered under clause (a), (b) or (c) above, that such financial statements present fairly in all material respects the financial position, results of operations and cash flows of the Parent Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP, subject to such Financial Officer's knowledge after due inquirynormal year end audit adjustments and the absence of footnotes, (ii) 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, (iiiii) to the extent applicable, setting forth reasonably detailed calculations demonstrating compliance with Sections Section 6.12, 6.13, 6.14 and 6.15 and (iiiiv) stating whether if any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred3.04, specifying the effect of such change on the financial statements accompanying such certificate, and (v) certifying that all notices required to be provided under Section 5.03 and 5.04 have been provided;
(e) concurrently with any delivery of financial statements under paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably request.
Appears in 2 contracts
Samples: Restructuring Support Agreement (Ascena Retail Group, Inc.), Restructuring Support Agreement (Ascena Retail Group, Inc.)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each LenderAgent:
(a) within 90 100 days after the end of each fiscal year of the Borrower, its audited consolidated balance sheet and related statements of operationsincome, stockholdersshareholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG PricewaterhouseCoopers LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedapplied (the Lenders agree that the Borrower's obligations under this paragraph (a) will be satisfied in respect of any fiscal year by delivery to the Administrative Agent, with copies for each Lender, within 100 days after the end of such fiscal year of its annual report for such fiscal year on Form 10-K (without a "going concern" or like qualification or exception and without any qualification or exception as to the scope of such audit) as filed with the SEC);
(b) within 45 55 days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerBorrower (including the fiscal quarter ending on March 31, 2001), its unaudited consolidated balance sheet and sheet, related statements of operations, stockholders' equity and cash flows income as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, and related statements of cash flows for 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 consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesfootnotes (the Lenders agree that the Borrower's obligations under this paragraph (b) will be satisfied in respect of any fiscal quarter by delivering to the Administrative Agent, with copies for each Lender, within 55 days after the end of such fiscal quarter of its quarterly report for such fiscal quarter on Form 10-Q as filed with the SEC);
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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, and (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate6.01;
(e) concurrently with any delivery of financial statements under paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gd) promptly after the same become publicly availableavailable or after transmission or receipt thereof, copies of all periodic and other reports, proxy statements and registration statements (other materials than exhibits thereto) 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, or with any national securities exchange, or distributed by the Borrower to its public stockholders shareholders generally, as the case may be;
, provided that, with respect to materials filed with any national securities exchange, only material filings shall be required to be delivered pursuant to this clause (h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Dayd); and
(ie) 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 any Loan Documentthis Agreement, as the Administrative Agent or any Lender (acting through the Administrative Agent) may reasonably request.
Appears in 2 contracts
Samples: Credit Agreement (Wellpoint Health Networks Inc /De/), Credit Agreement (Wellpoint Health Networks Inc /De/)
Financial Statements and Other Information. The Borrower Company will furnish to the Administrative Agent and each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the BorrowerCompany, its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Ernst & Young LLP or other independent public accountants of recognized national standing (without a "“going concern" ” or like qualification or exception and without exception, or any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Company and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the BorrowerCompany (beginning with the fiscal quarter ended on or about June 30, 2018), its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower Company and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of duly completed Compliance Certificate signed by a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificateCompany;
(e) concurrently with any delivery of financial statements under paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gd) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower Company or any Subsidiary with the Securities and Exchange Commission, SEC or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower Company to its public stockholders shareholders generally, as the case may be;
(he) on promptly after receipt thereof by the sixth Business Day Company or any Subsidiary, copies of each calendar month, a detailed report notice or other correspondence received from the SEC (or comparable agency in any applicable foreign jurisdiction) concerning any material investigation or possible material investigation or other inquiry by such agency regarding financial or other operational results of the Consolidated Backlog for such month, measured as of the close of business on the prior Business DayCompany or any Subsidiary; and
(if) promptly following any request therefor, (x) such other information regarding the operations, business affairs and financial condition of the Borrower Company or any Subsidiary, or compliance with the terms of any the Loan DocumentDocuments, as the Administrative Agent may reasonably request and (y) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation. Information required to be delivered pursuant to this Section 5.01 or Section 5.02 may reasonably requestbe delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such information, or provides a link thereto on the Company’s website on the Internet; or (ii) on which such 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 without charge (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (x) the Company shall deliver paper copies of such information to the Administrative Agent that the Administrative Agent (or any Lender acting through the Administrative Agent) requests the Company to deliver, until a written request to cease delivering paper copies is given by the Administrative Agent, and (y) the Company shall notify the Administrative Agent (by telecopy 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 information. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the information 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 information.
Appears in 2 contracts
Samples: Credit Agreement (Haemonetics Corp), Credit Agreement (Haemonetics Corp)
Financial Statements and Other Information. The Borrower Parent will furnish to the Administrative Agent and (with copies for each Lender:):
(a) within 90 100 days after the end of each fiscal year of the BorrowerParent, its audited consolidated balance sheet and related statements of operations, stockholders' shareholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG PricewaterhouseCoopers LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Parent and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied(the Lenders agree that Parent’s obligations under this paragraph (a) may be satisfied in respect of any fiscal year by delivery to the Administrative Agent, with copies for each Lender, within 100 days after the end of such fiscal year of its annual report for such fiscal year on Form 10-K as filed with the SEC);
(b) within 45 55 days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerParent, its unaudited consolidated balance sheet and related statements of operations, stockholders' equity 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 consolidated financial condition and results of operations of the Borrower Parent and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesfootnotes (the Lenders agree that Parent’s obligations under this paragraph (b) may be satisfied in respect of any fiscal quarter by delivering to the Administrative Agent, with copies for each Lender, within 55 days after the end of such fiscal quarter of its quarterly report for such fiscal quarter on Form 10-Q as filed with the SEC);
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower Parent (i) certifying, to such Financial Officer's knowledge after due inquiry, 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, thereto and (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 3.04(a)(i) 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gd) promptly after the same become publicly availableavailable or upon transmission or receipt thereof, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower any Credit Party or any Subsidiary of its Subsidiaries with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower any Credit Party to its public stockholders shareholders generally, as the case may be;
, provided that, with respect to materials filed with any national securities exchange, only material filings shall be required to be delivered pursuant to this paragraph (h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Dayd); and
(ie) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower any Credit Party or any Subsidiaryof its Subsidiaries, or compliance with the terms of any Loan Documentthis Credit Agreement, as the Administrative Agent or any Lender (acting through the Administrative Agent) may reasonably request. Documents required to be delivered pursuant to Section 5.01(a), (b) or (d) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which Parent posts such documents, or provides a link thereto on Parent’s website on the Internet at the website address listed on Schedule 10.01; or (ii) on which such documents are posted on Parent’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). The Administrative Agent shall have no obligation to request the posting or other electronic delivery of the documents referred to above. Each Credit Party hereby acknowledges that the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of Parent hereunder (collectively, “Parent Materials”) by posting the Parent Materials on IntraLinks, SyndTrak, Clearpar or another similar electronic system (the “Platform”).
Appears in 2 contracts
Samples: Credit Agreement (Medtronic PLC), Credit Agreement (Medtronic PLC)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the BorrowerBorrower (or, if earlier, by the date 3 (three) Business Days after the Annual Report on Form 10-K of the Borrower for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Ernst & Young LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP;
(b) within 45 forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerBorrower (or, if earlier, by the date 3 (three) Business Days after the Quarterly Report on Form 10-Q of the Borrower for such fiscal quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 and 6.15 Section 6.12 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(ed) concurrently with any delivery of financial statements under paragraph 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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(fe) prior to as soon as available, but in any event not more than thirty (30) days after the commencement end of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year copy of the plan and forecast (including a projected consolidated and consolidating balance sheet sheet, income statement and related statements of projected operations and cash funds flow as statement) of the end of and Borrower for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetin form reasonably satisfactory to the Administrative Agent;
(gf) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders shareholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ig) 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 any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to clauses (a) and (b) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System; provided that the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the filing 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 clause (c) of this Section 5.01 to the Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Rogers Corp), Credit Agreement (Rogers Corp)
Financial Statements and Other Information. The Borrower Parent will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the BorrowerParent, its audited consolidated balance sheet and related statements of operations, stockholders' shareholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Parent and the 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 BorrowerParent, its unaudited consolidated balance sheet and related statements of operations, stockholders' shareholders’ equity and cash flows as of the end of and for such fiscal quarter and the then 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 consolidated financial condition and results of operations of the Borrower Parent and the its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days 45 days after the end of each of the first two months three fiscal quarters of each fiscal quarter year of the BorrowerParent, and within 90 days after the end of the fourth of such fiscal quarters, its unaudited consolidated balance sheet and related statements of operations operations, shareholders’ equity and cash flows as of the end of and for such month fiscal quarter and the then 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Parent and the its Restricted Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments (in the case only of the financial statements for the first three fiscal quarters of each fiscal year of the Parent) and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clauses (a), (b) or (c) above, a certificate of a Financial Officer of the Borrower Parent, substantially in the form of Exhibit B hereto, (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.01 and 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 Effective Date 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ie) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower Parent or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and (for distribution to each Lender:):
(a) within 90 days after the end of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the Securities and Exchange Commission or any other government or regulatory authority, not to exceed one hundred twenty (120) days after the end of each fiscal year of the Borrower), its the audited consolidated balance sheet and related statements statement of operations, stockholders' equity changes in net assets and cash flows of the Borrower 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 KPMG LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP (except as disclosed therein) consistently applied; provided that the requirements set forth in this clause (a) may be fulfilled by providing to the Administrative Agent the report of the Borrower to the SEC on Form 10-K for the applicable fiscal year;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed seventy-five (75) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower), its unaudited the consolidated balance sheet and related statements statement of operations, stockholders' equity changes in net assets and cash flows of the Borrower and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of 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 sheetstatements of assets and liabilities, operations, changes in net assets and cash flows, as of the end of) the corresponding period or periods of the previous fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP (except as disclosed therein) consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; provided that the requirements set forth in this clause (b) may be fulfilled by providing to the Administrative Agent the report of the Borrower to the SEC on Form 10-Q for the applicable quarterly period;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) or (c) aboveof this Section, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether the Borrower has knowledge that a Default has occurred during the applicable period and, if a Default has occurredoccurred and is continuing, 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 6.126.01, 6.136.02, 6.14 6.04 and 6.15 6.07 and (iii) stating whether any change in GAAP as applied by (or in the application thereof of GAAP by) the Borrower has occurred since the date of Effective Date (but only if the Borrower's audited Borrower has not previously reported such change to the Administrative Agent and if such change has had a material effect on the financial statements referred to in Section 3.04 statements) and, if any such change has occurred, specifying the effect (unless such effect has been previously reported) as determined by the Borrower of such change on the financial statements accompanying such certificate; provided that the requirements set forth in this clause (c)(iii) may be fulfilled by providing to the Administrative Agent the report of the Borrower to the SEC on Form 10-Q for the applicable quarterly period;
(d) as soon as available and in any event not later than 20 days after the end of each monthly accounting period (ending on the last day of each calendar month) of the Borrower and its Subsidiaries, a Borrowing Base Certificate as at the last day of such accounting period which shall include the ratio of the Borrowing Base to the Combined Debt Amount (showing the components of the Combined Debt Amount); provided that if during such monthly accounting period the Borrower had declared or made any Restricted Payment pursuant to Section 6.05(d), such Borrowing Base Certificate shall certify that the condition set forth in Section 6.05(d)(x) was satisfied on the date of each such Restricted Payment;
(e) concurrently with promptly but no later than five (5) Business Days after any delivery Responsible Officer of financial statements under paragraph (a) abovethe Borrower shall at any time have knowledge that there is a Borrowing Base Deficiency, a certificate Borrowing Base Certificate as at the date such Responsible Officer of the accounting firm that reported on Borrower has knowledge of such financial statements stating whether they Borrowing Base Deficiency indicating the amount of the Borrowing Base Deficiency as at the date such Responsible Officer of the Borrower obtained knowledge during the course of their examination of such financial statements deficiency and the amount of any Default (which certificate may be limited the Borrowing Base Deficiency as of the date not earlier than one Business Day prior to the extent required by accounting rules or guidelines)date the Borrowing Base Certificate is delivered pursuant to this paragraph;
(f) prior promptly upon receipt thereof, copies of all significant written reports submitted to management or the board of directors of the Borrower by the Borrower’s independent public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems of the Borrower or any of its Subsidiaries delivered by such accountants to the commencement management or board of each fiscal year directors of the Borrower (other than the periodic reports that the Borrower’s independent auditors provide, in the ordinary course, to the audit committee of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements ’s board of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetdirectors);
(g) 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 of the Subsidiary Guarantors with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ih) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiaryof its Subsidiaries, or compliance with the terms of any this Agreement and the other Loan DocumentDocuments, as the Administrative Agent or any Lender (acting through the Administrative Agent) may reasonably request.
(i) Borrower and each Lender acknowledge that certain of the Lenders may be Public Lenders and, if documents or notices required to be delivered pursuant to this Section 5.01 or otherwise are being distributed through IntraLinks/IntraAgency, SyndTrak or another relevant website or other information platform (the “Platform”), any document or notice that Borrower has indicated contains Non-Public Information shall not be posted by Administrative Agent on that portion of the Platform designated for such Public Lenders. Xxxxxxxx agrees to clearly designate all information provided to Administrative Agent by or on behalf of Borrower or any of its Subsidiaries which is suitable to make available to Public Lenders. If Xxxxxxxx has not indicated whether a document or notice delivered pursuant to this Section 5.01 contains Non-Public Information, the Administrative Agent reserves the right to post such document or notice solely on that portion of the Platform designated for Lenders who wish to receive material Non-Public Information with respect to Borrower, its Subsidiaries and their Securities (as such term is defined in Section 5.13 of this Agreement).
(j) Notwithstanding anything to the contrary herein, the requirements to deliver documents set forth in Section 5.01(a), (b) and (g) will be fulfilled by filing by the Borrower of the applicable documents for public availability on the SEC’s Electronic Data Gathering and Retrieval system; provided, that the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Sixth Street Specialty Lending, Inc.)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 65 days after the end of each fiscal year of the Borrower, its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP PricewaterhouseCoopers LLC or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the 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 Borrower, its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 five (5) Business Days after following the end of each delivery of the first two months financial statements referred to in subsections (a) or (b) of each fiscal quarter this Section 5.01, a copy of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of certification signed by the end of and for such month principal executive officer 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 consolidated principal financial condition and results of operations officer of the Borrower (each, a “Certifying Officer”) as required by Rule 13A-14 under the Exchange Act and a copy of the Subsidiaries internal controls disclosure statement by such Certifying Officers as required by Rule 13A-15 under the Exchange Act and Final Rules Release No. 33-8238 of the SEC, each as included in the Borrower’s Annual Report on a consolidated basis in accordance with GAAP consistently appliedForm 10-K or Quarterly Report on Form 10-Q, subject to normal year-end audit adjustments and for the absence of footnotesapplicable fiscal period;
(d) concurrently with any delivery of financial statements under paragraph subsections (a), ) or (b) or (c) aboveof this Section 5.01, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 and 6.15 Section 6.04(a) and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budgetb) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each LenderAgent:
(a) within 90 days after the end of each fiscal year of the BorrowerBorrower (or, so long as the Borrower shall be subject to periodic reporting obligations under the Exchange Act, by the date that the Annual Report on Form 10-K of the Borrower for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any extension available thereunder for the filing of such form), its audited consolidated balance sheet and related statements of operationsincome, stockholders' ’ equity and cash flows as of the end of and for such fiscal year, setting forth in each case in comparative form the figures for the previous prior fiscal year, all reported on audited by KPMG and accompanied by the opinion of Ernst & Young LLP or other another independent registered public accountants accounting firm 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 consolidated financial condition and position, results of operations and cash flows of the Borrower and the its consolidated Restricted Subsidiaries on a consolidated basis as of the end of and for such year in accordance with GAAP consistently appliedGAAP;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerBorrower (or, so long as the Borrower shall be subject to periodic reporting obligations under the Exchange Act, by the date that the Quarterly Report on Form 10-Q of the Borrower for such fiscal quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any extension available thereunder for the filing of such form) its unaudited consolidated balance sheet and related consolidated statements of operations, stockholders' equity income 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 prior fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly fairly, in all material respects respects, the consolidated financial condition and position, results of operations and cash flows of the Borrower and the its consolidated Restricted 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 consistently appliedGAAP, subject to changes resulting from audit and normal year-end audit adjustments and the absence of certain footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrowerif any Subsidiary has been designated as an Unrestricted Subsidiary, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any each delivery of financial statements under paragraph clause (a), ) or (b) or above, financial statements (cin substantially the same form as the financial statements delivered pursuant to clauses (a) and (b) above, a certificate ) prepared on the basis of a Financial Officer consolidating the accounts of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, and its Restricted Subsidiaries and treating any Unrestricted Subsidiaries 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 they were not consolidated with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 accounted for on the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all basis of the functions equity method but rather account for an investment and otherwise eliminating all accounts of said CommissionUnrestricted Subsidiaries, or together with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may bean explanation of reconciliation adjustments in reasonable detail;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Costar Group Inc)
Financial Statements and Other Information. The Borrower Company will furnish to the Administrative Agent and each LenderLender each of the following together with all supporting documentation as the Administrative Agent may reasonably require:
(a) within 90 days after the end of each fiscal year of the BorrowerCompany, its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG PricewaterhouseCoopers LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Company and the Subsidiaries 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 BorrowerCompany, its unaudited the Company's consolidated balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days 45 days after the end of each of the first two months (or three, in the event of a fiscal quarter having four fiscal four week periods) fiscal four-week periods of each fiscal quarter of the BorrowerCompany (other than the first fiscal four-week period of each fiscal year), its unaudited consolidated balance sheet and related statements of operations operations, stockholders' equity and cash flows as of the end of and for such month fiscal four-week periods 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, respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; provided that, the information required by this Section shall not be required with respect to any month during which the average daily Exposure during such month is less than $50,000,000;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether a Default or an 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 detailed calculations demonstrating compliance with Sections Section 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the BorrowerCompany's audited financial statements referred to in Section 3.04 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 paragraph 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 Default or an Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) within ten (10) Business Days after the end of each fiscal month, a completed Borrowing Base Certificate calculating and certifying the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base as of the last day of such fiscal month, signed on behalf of the Company by one of its Financial Officers, provided, however, that upon the occurrence of a Triggering Event, the Borrowing Base Certificate required by this paragraph will be delivered by the Borrowers weekly within eight (8) Business Days after the end of each calendar week and shall calculate and certify the Tranche A Borrowing Base and the Tranche A-1 Borrowing Base as of the last day of such calendar week;
(g) prior to the commencement end of the first fiscal quarter of each fiscal year of the BorrowerCompany, a reasonably detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for each fiscal quarter during such fiscal year and setting forth any material the assumptions used for purposes of preparing such budget) and, promptly when availableavailable and from time to time, any significant revisions of such budgetbudget (including, without limitation, any amounts to be paid to any pension plan (including any Plan, or, the best of the Company's knowledge, a Multiemployer Plan) or to any third party on account of any such pension plan);
(h) within ten (10) Business Days after any sale, transfer or other disposition of assets permitted by clause (c) of Section 6.05, a complete description of such sale, transfer or other disposition, and, with respect to sales, transfers or other dispositions resulting in Net Proceeds greater than $20,000,000, (i) the most recently delivered Borrowing Base Certificate delivered pursuant to Section 5.01(f) revised to give pro forma effect to such sale, transfer or other disposition and (iii) any significant revisions to the budget previously delivered pursuant to clause (g) of this Section;
(i) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower Company or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower Company to its public stockholders generally, as the case may be;
(hj) the financial and collateral reports described on Schedule C hereto, at the sixth Business Day of each calendar monthtimes set forth in such Schedule; provided that, a detailed report the information required by this Section shall not be required with respect to any month during which the average daily Exposure during such month is less than $50,000,000;
(k) upon the reasonable request of the Consolidated Backlog for Administrative Agent, (i) a list of all "business associate agreements" (as such monthterm is defined in HIPAA) that any Loan Party has entered into with any Person and true, measured as correct and complete copies of all of such agreements; and (ii) a list of all participation agreements of the close of business on the prior Business DayBorrowers with health maintenance organizations, insurance programs, preferred provider organizations and other third party payors; and
(il) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.01(a), Section 5.01(b) or Section 5.01 (c) (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 Company posts such documents, or provides a link thereto on the Company's website on the Internet at the website address listed on Schedule 5.01; or (ii) on which such 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: (x) at the reasonable request of any Lender, the Company shall deliver paper copies of the documents requested by such Lender to the Administrative Agent for delivery to such Lender, and (y) the Company 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. 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 Loan Parties 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 (Great Atlantic & Pacific Tea Co Inc)
Financial Statements and Other Information. The Borrower will Obligor ------------------------------------------ shall furnish to the Administrative Agent and each LenderSecured Party:
(a) within 90 days after the end of each fiscal year of the BorrowerObligor, its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such that year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP Deloitte & Touche or other 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 that audit) to the effect that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Obligor and the 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 BorrowerObligor, its unaudited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such that 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 consolidated financial condition and results of operations of the Borrower Obligor and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days 20 days after the end of each of the first two months month of each fiscal quarter year of the BorrowerObligor, its unaudited consolidated balance sheet and related statements of operations and cash flows operations, as of the end of and for such that month 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Obligor and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower Obligor (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether or not a Default has occurred and, if a Default has occurred, specifying the details thereof of, and any action taken or proposed to be taken with respect theretoto, that Default and (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether or not any change in GAAP or in the application thereof of GAAP has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such that change on the financial statements accompanying such that certificate;
(e) concurrently with any delivery of financial statements under paragraph clause (a) above, a certificate of the accounting firm that reported on such those financial statements stating whether or not they obtained knowledge during the course of their examination of such those financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower Obligor or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, Commission or with any national securities exchange, exchange or distributed by the Borrower Obligor to its public stockholders shareholders generally;
(g) promptly upon their being filed, as copies of all filings with or reports to any Governmental Authority having jurisdiction over the case may be;gaming activities and assets of the Obligor and its Subsidiaries made by the Obligor or any of its Subsidiaries; and
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) promptly following any request thereforsuch request, such other information regarding the operations, business affairs and financial condition of the Borrower Obligor or any Subsidiaryof its Subsidiaries, or compliance with the terms of any Loan Documentthis Agreement, as the Administrative Agent or any Lender Party may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. NYDOCS02/1167307 85 The Borrower Company will maintain, and cause each of its Subsidiaries to maintain, a standard system of accounting in accordance with GAAP, and furnish to the Administrative Agent and each Lender:
(a) As soon as available and, in any event, within 90 120 days after the end close of each fiscal year year, a copy of (i) the Borrower, its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of such fiscal year, of the Company on a Consolidated basis, and (ii) the related statements of income, cash flows and shareholder’s equity for such fiscal year, of the Company on a Consolidated basis, setting forth in each case in comparative form the corresponding figures for in respect of the previous fiscal year, all reported on by KPMG LLP or other independent public accountants of recognized national standing (without a "going concern" or like qualification or exception in reasonable detail, and without any qualification or exception as to accompanied by, in the scope case of such audit) to Consolidated financial statements, a report of the effect Accountants, which report shall state that such consolidated Consolidated financial statements fairly present fairly, in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the Subsidiaries Company on a consolidated Consolidated basis in accordance with GAAP consistently applied;
(b) As soon as available, and in any event within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, its unaudited consolidated balance sheet and related statements of operations, 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 a copy of (or, in the case of i) the balance sheet, as of the end ofof such quarter, of the Company on a Consolidated basis and (ii) the previous related statements of income, cash flows and shareholder’s equity of the Company on a Consolidated basis for (x) such quarter, and (y) the period from the beginning of the then current fiscal year to the end of such quarter, in each case in comparative form with the prior fiscal year, all certified by one in reasonable detail and prepared in accordance with GAAP (without footnotes and subject to year-end adjustments), together with a certificate of its Financial Officers as presenting a Responsible Officer, which certificate shall state that all such financial statements fairly present in all material respects the consolidated financial condition and results of operations of the Borrower Company and the its Subsidiaries on a consolidated basis and have been prepared in accordance with GAAP consistently applied, (but without footnotes and subject to normal year-end audit adjustments and the absence of footnotesadjustments);
(c) within 10 Business Days Within 60 days after the end of each of the first two months three fiscal quarters of each fiscal quarter year, and within 120 days after the close of each fiscal year, (i) a certificate of a Responsible Officer certifying that to the Borrowerbest of his or her knowledge no condition or event has occurred which would constitute a Default or an Event of Default, its unaudited consolidated balance sheet or if so, specifying in such certificate all such violations, conditions and related statements of operations events and cash flows the nature and status thereof and (ii) a Compliance Certificate, as of the end of and for such month each of the first three fiscal quarters of each fiscal year and the then elapsed portion end of the each fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly, in all material respects, the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesResponsible Officer;
(d) concurrently with any delivery of financial statements under paragraph (a), (b) or (c) above, a certificate of a Financial Officer of the Borrower Prompt written notice of: (i) certifyingany citation, summons, subpoena, order to such Financial Officer's knowledge after due inquiry, as show cause or other order naming the Company or any of its Subsidiaries a party to whether any proceeding before any Governmental Authority which could reasonably be expected to have 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 theretoMaterial Adverse effect, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12any lapse or other termination of any license, 6.13permit, 6.14 and 6.15 and franchise or other authorization issued to the Company or any of its Subsidiaries by any Governmental Authority, (iii) stating whether any change in GAAP refusal by any Governmental Authority to renew or in extend any license, permit, franchise or other authorization, and (iv) any dispute between the application thereof has occurred since the date Company or any of the Borrower's audited financial statements its Subsidiaries and any Governmental Authority, which lapse, termination, refusal or dispute, referred to in Section 3.04 andclause (ii), if any such change has occurred(iii) or (iv) above, specifying the effect of such change on the financial statements accompanying such certificatecould reasonably be expected to have a Material Adverse effect;
(e) concurrently Upon a Responsible Officer becoming aware thereof, prompt written notice of the occurrence of any ERISA Event that, alone or together with any delivery of financial statements under paragraph (a) aboveother ERISA Events that have occurred, could reasonably be expected to have 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 Default (which certificate may be limited to the extent required by accounting rules or guidelines)Material Adverse effect;
(f) prior Upon a Responsible Officer becoming aware thereof, prompt written notice that a material contribution required to be made to any Foreign Pension Plan has not been timely made, the commencement failure of each fiscal year of the Borrower, which would reasonably be expected to have a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetMaterial Adverse effect;
(g) promptly after the same become publicly availableUpon a Responsible Officer becoming aware thereof, 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 prompt written notice of the functions occurrence of said Commission(i) each Default, or with any national securities exchange(ii) each Event of Default, or distributed by the Borrower to its public stockholders generally, as the case may be;(iii) each Material Adverse change and (iv) a Change of Control; NYDOCS02/1167307 86
(h) on Promptly following any request in writing therefor, provide information and documentation reasonably requested by the sixth Business Day Administrative Agent or any Lender (acting through the Administrative Agent) for purposes of each calendar monthcompliance with applicable “know your customer” and anti-money-laundering rules and regulations, a detailed report including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation;
(i) Promptly after any change in the information as to ownership included in any Beneficial Ownership Certification, provide notice in reasonable detail of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Daychange; and
(ij) promptly following any Promptly upon request therefor, such other information and reports regarding the operationsbusiness, business affairs and condition (financial condition or otherwise), property or operations of the Borrower or any Subsidiary, or compliance with the terms of any Loan DocumentCompany and its Subsidiaries, as the Administrative Agent or any Lender Lender, through the Administrative Agent, at any time or from time to time may reasonably request (it being understood that the Company and its Subsidiaries shall not be required to provide any information which is subject to confidentiality restrictions, the nature of which prohibit such disclosure notwithstanding the provisions of Section 11.07 hereof). Documents required to be delivered pursuant to Section 6.07(a) or (b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and shall be deemed to 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 11.02; or (ii) on which such 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); or (iii) on which the Company posts such documents at xxx.xxx.xxx; provided that: the Company shall notify the Administrative Agent of the posting of any such documents and provide to the Administrative Agent, at its request, by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of copies of the documents referred to above. Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on DebtDomain, IntraLinks, Syndtrak, ClearPar, 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 any of the Borrowers or their respective 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. Each 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 Borrowers shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective 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 11.07); (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 Platform not designated “Public Side Information.” NYDOCS02/1167307 87
Appears in 1 contract
Samples: Credit Agreement (Tiffany & Co)
Financial Statements and Other Information. The Borrower Borrowers will furnish to the Administrative Agent and each Lender:
: (a) within 90 ninety (90) days after the end of each fiscal year of the BorrowerBorrowers, its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other independent public accountants of recognized national standing (without a "“going concern" ” or like qualification qualification, commentary or exception exception, and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Borrowers and the their consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
; (b) within 45 forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerBorrowers, its unaudited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the such fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower Representative as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower Borrowers and the their consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
; (c) within 10 Business Days after the end concurrently with any delivery of each of the first two months of each fiscal quarter of the Borrowerfinancial statements under clause (a) or (b) above, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 a Compliance Certificate (ori) certifying, in the case of the balance sheetfinancial statements delivered under clause (b) above, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Borrowers and the their consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph (a), (bii) or (c) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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, (iiiii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 Section 6.12 and (iiiiv) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
; (ed) concurrently with as soon as available, but in any delivery of financial statements under paragraph event no later than forty-five (a45) above, a certificate of days following 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 (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement end of each fiscal year of the BorrowerBorrowers, a detailed consolidated budget for such fiscal year copy of the plan (including a projected consolidated balance sheet and related statements of projected operations sheet, income statement and cash flow as statement) of the end Borrowers for each fiscal quarter of and for such the upcoming fiscal year and setting forth any material assumptions used for purposes of preparing such budget(the “Projections”) and, promptly when available, any significant revisions of such budget;
in form reasonably satisfactory to the Administrative Agent; (ge) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower any Loan Party or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe 70 SEC, or with any national securities exchange, or distributed by the Borrower Borrowers to its public stockholders shareholders generally, as the case may be;
; (hf) on the sixth Business Day promptly after receipt thereof by any Borrower or any Subsidiary, copies of each calendar month, a detailed report 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 the SEC or such other agency regarding financial or other operational results of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Dayany Borrower or any Subsidiary thereof; and
(ig) promptly following any request therefor, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of any Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request; (h) promptly following any request therefor, (x) such other information regarding the operations, business affairs and financial condition of the Borrower any Loan Party or any Subsidiary, or compliance with the terms of any Loan Documentthis Agreement, as the Administrative Agent or any Lender (through Administrative Agent) may reasonably request.request and (y) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation; and (i) promptly after any request therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrowers or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if the Borrowers or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the Borrowers or the applicable ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof. Documents required to be delivered pursuant to Section 5.01(a), (b) or (e) (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 such materials are publicly available as posted on the Electronic Data Gathering, Analysis and Retrieval system (XXXXX); or (ii) on which such documents are posted on the Borrowers’ 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 made available by the Administrative Agent); provided that: (A) upon written request by the Administrative Agent (or any Lender through the Administrative Agent) to the Borrower Representative, the Borrower Representative shall deliver paper copies of such documents to the Administrative Agent or such Lender until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (B) the Borrower Representative shall notify the Administrative Agent and each Lender (by facsimile or through Electronic System) of the posting of any such documents and provide to the Administrative Agent through Electronic System 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 Borrowers with any such request by a Lender for delivery, and each Lender shall be solely responsible for timely accessing 71
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and for distribution to each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the Borrower, its the audited consolidated balance sheet and related statements statement of operations, stockholders' equity changes in net assets and cash flows of the Borrower 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 KPMG LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP; provided that the requirements set forth in this clause (a) may be fulfilled by providing to the Administrative Agent and the Lenders the report of the Borrower to the SEC on Form 10-K for the applicable fiscal year;
(b) within 45 forty five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, its unaudited the consolidated balance sheet and related statements statement of operations, stockholders' equity changes in net assets and cash flows of the Borrower and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of 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 sheetstatements of assets and liabilities, operations, changes in net assets and cash flows, as of the end of) the corresponding period or periods of the previous fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided that the requirements set forth in this clause (b) may be fulfilled by providing to the Administrative Agent and the Lenders the report of the Borrower to the SEC on Form 10-Q for the applicable quarterly period;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) or (c) aboveof this Section, a certificate of a Financial Officer of the Borrower (i) certifyingsolely to the extent that the financial statements provided to the Administrative Agent are not the financial statements filed with the Securities and Exchange Commission, to certifying that such Financial Officer's knowledge after due inquirystatements are consistent with the financial statements filed by the Borrower with the Securities and Exchange Commission, (ii) certifying as to whether the Borrower has knowledge that a Default or Event of Default has occurred during the applicable period 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, (iiiii) setting forth reasonably detailed calculations demonstrating whether the Borrower is in compliance with Sections 6.126.01(h), 6.136.01(l), 6.14 6.01(m), 6.01(n), 6.02(d), 6.02(g), 6.04(e), 6.04(f) and 6.15 6.07 and (iiiiv) stating whether any change in GAAP as applied by (or in the application thereof of GAAP by) the Borrower has occurred since the date of Effective Date (or, if applicable, the Borrower's most recently audited financial statements referred to in Section 3.04 delivered), 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 not later than twenty (20) days after the end of each monthly accounting period (ending on the last day of each calendar month) of the Borrower and its Subsidiaries, (i) a Borrowing Base Certificate as at the last day of such accounting period; provided that (x) if during such monthly accounting period the Borrower has declared or made any Restricted Payment pursuant to Section 6.05(d), such Borrowing Base Certificate shall include a description of each such Restricted Payment and a certification from a Financial Officer that the conditions set forth in Section 6.05(d) were satisfied on the date of each such Restricted Payment and (y) if during such monthly accounting period the Obligors sell, transfer (including a deemed transfer resulting from a division or plan of division) or otherwise Dispose of Investments to a Financing Subsidiary as described under Section 6.03(e), such Borrowing Base Certificate shall include a description of such dispositions and a certification from a Financial Officer that the conditions set forth in Section 6.03(e) were satisfied on the date of each such disposition;
(e) concurrently with promptly but no later than five (5) Business Days after any delivery Responsible Officer of financial statements under paragraph (a) abovethe Borrower shall at any time have knowledge that there is a Borrowing Base Deficiency, a certificate Borrowing Base Certificate as at the date such Responsible Officer of the accounting firm that reported on Borrower has knowledge of such financial statements stating whether they Borrowing Base Deficiency indicating the amount of the Borrowing Base Deficiency as at the date such Responsible Officer of the Borrower obtained knowledge during the course of their examination of such financial statements deficiency and the amount of any Default (which certificate may be limited the Borrowing Base Deficiency as of the date not earlier than one Business Day prior to the extent required by accounting rules or guidelines)such date;
(f) prior promptly upon receipt thereof copies of all significant reports submitted by the Borrower’s independent public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems of the Borrower or any of its Subsidiaries delivered by such accountants to the commencement management or board of each fiscal year directors of the BorrowerBorrower (to the extent information contained in any such report (i) does not constitute non-financial trade secrets or non-financial proprietary information, (ii) is not subject to attorney-client or similar privilege and does not constitute attorney work product and (iii) is not otherwise confidential or would not result in a detailed consolidated budget for breach, default or termination of any contractual obligation binding on the Borrower or any of its Subsidiaries; provided that the Borrower shall notify the Administrative Agent that it is withholding such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetdocument or other information in accordance with this parenthetical);
(g) 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 of the Subsidiary Guarantors with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ih) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiaryof its Subsidiaries, or compliance with the terms of any this Agreement and the other Loan DocumentDocuments, as the Administrative Agent or any Lender may reasonably request, including such documents and information requested by the Administrative Agent or any Lender that are reasonably required in order to comply with “know-your-customer” and other anti-terrorism, anti-money laundering and similar rules and regulations and related policies and procedures (to the extent such document or other information (i) does not constitute non-financial trade secrets or non-financial proprietary information, (ii) is not subject to attorney-client or similar privilege and does not constitute attorney work product and (iii) is not otherwise confidential or would not result in a breach, default or termination of any contractual obligation binding on the Borrower or any of its Subsidiaries; provided that the Borrower shall notify the Administrative Agent that it is withholding such document or other information in accordance with this parenthetical).
(i) Borrower and each Lender acknowledge that certain of the Lenders may be Public Lenders and, if documents or notices required to be delivered pursuant to this Section 5.01 or otherwise are being distributed through IntraLinks/IntraAgency, SyndTrak or another relevant website or other information platform (the “Platform”), any document or notice that Borrower has indicated contains Non-Public Information shall not be posted by Administrative Agent on that portion of the Platform designated for such Public Lenders. If Borrower has not indicated whether a document or notice delivered pursuant to this Section 5.01 contains Non-Public Information, the Administrative Agent reserves the right to post such document or notice solely on that portion of the Platform designated for Lenders who wish to receive material Non-Public Information with respect to Borrower, its Subsidiaries and their Securities (as such term is defined in Section 5.13 of this Agreement).
(j) Notwithstanding anything to the contrary herein, the requirements to deliver documents set forth in Section 5.01(a), (b) and (g) will be fulfilled by filing by the Borrower of the applicable documents for public availability on the SEC’s Electronic Data Gathering and Retrieval system.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Crescent Capital BDC, Inc.)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and for distribution to each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed one hundred twenty (120) days after the end of each fiscal year of the Borrower), its commencing with the fiscal year ending December 31, 2022, the audited consolidated balance sheet statements of assets and related liabilities, statements of operations, stockholders' equity changes in net assets and cash flows of the Borrower and its consolidated 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 KPMG LLP or any other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as disclosed therein) applied;
(b) within 45 forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed seventy-five (75) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower), its unaudited the consolidated balance sheet statements of assets and related liabilities, statements of operations, stockholders' equity changes in net assets and cash flows of the Borrower and its consolidated 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 corresponding period or periods of the previous fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as disclosed therein) applied, subject to normal year-end audit adjustments and adjustments, the absence of footnotesfootnotes and as otherwise described therein;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) or (c) aboveof this Section 5.01, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether the Borrower has knowledge of a violation of this Agreement (including the occurrence of any event described in Article VII) that has resulted in the occurrence and continuation of a Default has occurred hereunder during the applicable period and, if a Default has occurredoccurred and is continuing, specifying the details thereof and any action which the Borrower has taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.126.01(b), 6.136.01(g), 6.14 6.01(i), 6.01(m), 6.01(n), 6.02(d), 6.02(e), 6.03(c), 6.03(d), 6.03(e), 6.03(h), 6.03(i), 6.04(d), 6.04(j), 6.05(b), 6.05(e), 6.05(f), 6.07 and 6.15 6.12(c) or, if not in compliance, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (iii) to the extent not previously disclosed on a Form 10-K or Form 10-Q previously filed with the SEC, stating whether any change in GAAP as applied by (or in the application thereof of GAAP by) the Borrower has occurred since the date of Effective Date (but only if the Borrower's audited Borrower has not previously reported such change to the Administrative Agent and if such change has had a material effect on the financial statements referred to in Section 3.04 statements) and, if any such change has occurred, specifying the effect (unless such effect has been previously reported) as determined by the Borrower of such change on the financial statements accompanying such certificate;
(ed) concurrently with as soon as available and in any delivery event not later than the last Business Day of financial statements under paragraph the calendar month following each monthly accounting period (aending on the last day of each calendar month) aboveof the Borrower, (1) a Borrowing Base Certificate as at the last day of such accounting period presenting (i) the Borrower’s computation (and including the rationale for any industry reclassification) of the Borrowing Base, (ii) [reserved], (iii) (A) the quantity sold of any Portfolio Investment previously included in the Borrowing Base in such accounting period, (B) the value assigned to each such Portfolio Investment as of the prior accounting period, (C) the weighted average sale price of each such Portfolio Investment sold and (D) the variance between (B) and (C) and (iv) the aggregate amount of all accrued paid-in-kind interest and all paid-in-kind interest collected, in each case, during such accounting period on Portfolio Investments included in the Borrowing Base and (2) if during such monthly accounting period the Borrower has declared or made any Restricted Payment pursuant to Section 6.05(d), a certificate of a Financial Officer of the accounting firm Borrower describing each such Restricted Payment and certifying that reported the conditions set forth in Section 6.05(d) were satisfied on the date of each such financial statements stating whether they Restricted Payment;
(e) promptly but no later than five (5) Business Days after any Financial Officer of the Borrower shall at any time have knowledge that there is a Borrowing Base Deficiency, a Borrowing Base Certificate as at the date the Borrower has knowledge of such Borrowing Base Deficiency indicating the amount of such Borrowing Base Deficiency as at the date the Borrower obtained knowledge during the course of their examination of such financial statements deficiency and the amount of any Default such Borrowing Base Deficiency as of the date not earlier than one (which certificate may be limited 1) Business Days prior to the extent required by accounting rules or guidelines)date the Borrowing Base Certificate is delivered pursuant to this paragraph;
(f) prior promptly upon receipt thereof, copies of all significant written reports submitted to management or the board of directors of the Borrower by the Borrower’s independent public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems of the Borrower or any of its Significant Subsidiaries delivered by such accountants to the commencement management or board of each fiscal year directors of the Borrower (other than the periodic reports that the Borrower’s independent auditors provide, in the ordinary course, to the audit committee of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements ’s board of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetdirectors);
(g) promptly after (and only if) the same become publicly available, copies of all periodic and other reports, proxy statements and other materials sent to all stockholders or filed by any of the Borrower or any Subsidiary Obligors with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ih) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiaryof its Subsidiaries, or compliance by the Borrower and the Obligors with the terms of any this Agreement and the other Loan DocumentDocuments, or for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act and the Beneficial Ownership Regulation (to the extent applicable), as the Administrative Agent or any Lender (acting through the Administrative Agent) may reasonably request. Notwithstanding anything in this Section 5.01 to the contrary, the Borrower shall be deemed to have satisfied the requirements of this Section 5.01 (other than Sections 5.01(c), (d), (e) and (h)) if the reports, documents and other information of the type otherwise so required thereby are publicly available when filed on XXXXX at the xxx.xxx.xxx website or any successor service provided by the SEC.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Blue Owl Technology Income Corp.)
Financial Statements and Other Information. The Borrower Company will furnish to the Administrative Agent and for distribution to each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the BorrowerCompany (or, if earlier, by the date that the Annual Report on Form 10-K of the Company for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG PricewaterhouseCoopers LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerCompany (or, if earlier, by the date that the Quarterly Report on Form 10-Q of the Company for such fiscal quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower Company (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 and 6.15 Section 6.11 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(ed) concurrently with any delivery of financial statements under paragraph 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 Default under Section 6.11 (which certificate may be limited to the extent required by accounting rules or guidelines);
(fe) prior to as soon as available, but in any event not more than forty-five (45) days following the commencement end of each fiscal year of the BorrowerCompany, a detailed consolidated budget for such fiscal year copy of the plan and forecast (including a projected consolidated balance sheet sheet, income statement and related statements of projected operations and cash funds flow as statement) of the end Company for each quarter of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetin form reasonably satisfactory to the Administrative Agent;
(gf) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower Company or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower Company to its public stockholders shareholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ig) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any Subsidiary, or compliance with the terms of any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to clauses (a), (b) and (f) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System; provided that the Company shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the filing 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 clause (c) of this Section 5.01 to the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Newmarket Corp)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower, its audited consolidated and unaudited consolidating balance sheet sheets and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG PricewaterhouseCoopers LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the 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 Borrower, its unaudited consolidated and consolidating balance sheet sheets and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days 30 days after the end of each of the first two fiscal months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations operations, stockholders' equity and cash flows as of the end of and for such fiscal month 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, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably request.of
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(ai) within 90 ninety (90) days after the end of each fiscal year of the BorrowerBorrower (or, if earlier, by the date that the Annual Report on Form 10-K of the Borrower for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its audited consolidated balance sheet and related statements of operations, stockholders' shareholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other 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 auditexception) to the effect that such consolidated financial statements present fairly, in all material respects, the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedRegulation S-K of the SEC;
(bii) within 45 forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerBorrower (or, if earlier, by the date that the Quarterly Report on Form 10-Q of the Borrower for such fiscal quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its unaudited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and such fiscal quarter, its related statement of operations for such fiscal quarter and its related statements of operations and cash flows for 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 consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(diii) concurrently with any delivery of financial statements under paragraph (a), (bSection 5.1(i) or (c) above5.1(ii), a certificate of a Financial Officer of the Borrower (iA) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether a Default has occurred and is continuing and, if a Default has occurredoccurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iiB) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 Section 6.7 and (iiiC) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 4.4(a) 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(giv) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders shareholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(iv) 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 any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request.. Documents required to be delivered pursuant to Section 5.1(i), 5.1(ii) or 5.1(iv) may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System; provided that the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the filing 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(iii) to the Administrative Agent
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Thomas & Betts Corp)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and Agent, for distribution to each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower, its commencing with the fiscal year ending December 31, 2017, the audited consolidated balance sheet and related statements of operations, stockholders' changes in equity and cash flows as of the end of and for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, of the Borrower and its consolidated Subsidiaries as of such year, all reported on by KPMG PricewaterhouseCoopers LLP or other 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 auditaudit (other than any exception, qualification or explanatory paragraph with respect to or resulting from an upcoming maturity date under this Agreement occurring within one year from the time such opinion is delivered)) to the effect that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the 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 Fiscal Quarters of each fiscal year of the BorrowerBorrower (commencing with the Fiscal Quarter ended September 30, its unaudited 2017), the consolidated balance sheet and related statements of operations, stockholders' equity operations and cash flows as of the end of and for such fiscal quarter 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, of the Borrower and the consolidated Subsidiaries, all certified by one of its Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether a Default has occurred and is continuing on such date and, if a Default has occurredoccurred and is continuing on such date, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (ii) if the Borrower has any Unrestricted Subsidiaries during the related fiscal period, setting forth in a reasonably detailed calculations demonstrating compliance with Sections 6.12schedule, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date a comparison of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on consolidated results under clause (a) or (b) above with the financial statements accompanying such certificatecondition and results of operations of the Borrower and its consolidated Restricted Subsidiaries;
(e) concurrently with any delivery of financial statements under paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gd) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ie) 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 any Loan Documentthis Agreement, as the Administrative Agent or any Lender or any Issuing Bank through the Administrative Agent may reasonably requestrequest in writing;
(f) within 90 days following the end of each fiscal year, commencing with the fiscal year ending December 31, 2017, a forecasted budget in reasonable detail of the Borrower and the Restricted Subsidiaries for such fiscal year;
(g) promptly following any request thereof, all information and/or documentation relating to the Borrower and its Subsidiaries necessary to comply with the USA PATRIOT Act or for the Administrative Agent, Lenders or Issuing Banks to confirm compliance with the USA PATRIOT Act in connection with this Agreement; and
(h) commencing with the delivery of the financial statements for the Fiscal Quarter ending September 30, 2017, together with each delivery of financial statements of Borrower and its Restricted Subsidiaries pursuant to Section 5.01(a) and Section 5.01(b), a duly executed and completed Compliance Certificate demonstrating in reasonable detail the calculation of the Secured Leverage Ratio and compliance with the financial covenants set forth in Section 6.11 and Section 6.12. Documents required to be delivered pursuant to this Section 5.01 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 xxx.xxxxxxxxxx.xxx (or any other address notified by the Borrower to the Administrative Agent from time to time), (ii) solely with respect to the obligations in paragraphs (a), (b) and (d) of this Section 5.01, on which the Borrower files or furnishes its Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as applicable, with the SEC via the XXXXX filing system or any successor electronic delivery procedures, in each case, within the time periods specified in such paragraphs or (iii) on which such documents are delivered to the Administrative Agent. The Administrative Agent shall post such documents 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 the Borrower shall be obligated to pay for all start-up and on-going maintenance costs associated with such Internet or intranet website pursuant to Section 9.03. The Administrative Agent shall have no obligation 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 and each Issuing Bank shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Appears in 1 contract
Samples: Credit Agreement (Shutterfly Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 65 days after the end of each fiscal year of the Borrower, its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP PricewaterhouseCoopers LLC or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the 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 Borrower, its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 five (5) Business Days after following the end of each delivery of the first two months financial statements referred to in subsections (a) or (b) of each fiscal quarter this Section 5.01, a copy of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of certification signed by the end of and for such month principal executive officer 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 consolidated principal financial condition and results of operations officer of the Borrower (each, a “Certifying Officer”) as required by Rule 13A-14 under the Exchange Act and a copy of the Subsidiaries internal controls disclosure statement by such Certifying Officers as required by Rule 13A-15 under the Exchange Act and Final Rules Release No. 33-8238 of the SEC, each as included in the Borrower’s Annual Report on a consolidated basis in accordance with GAAP consistently appliedForm 10-K or Quarterly Report on Form 10-Q, subject to normal year-end audit adjustments and for the absence of footnotesapplicable fiscal period;
(d) concurrently with any delivery of financial statements under paragraph subsections (a), ) or (b) or (c) aboveof this Section 5.01, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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, and (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 Section 6.04(a) and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;b); 509265-1601-13380-Active.12396546.12
(e) concurrently with any delivery of financial statements under paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders shareholders generally, as the case may be;
(hf) on promptly after Xxxxx’x or S&P shall have announced a change in the sixth Business Day of each calendar month, a detailed report rating established or deemed to have been established with respect to the Borrower’s corporate family rating or any of the Consolidated Backlog for Borrower’s Index Debt, written notice of such month, measured as of the close of business on the prior Business Dayrating change; and
(ig) 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 any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request. Financial statements and other documents required to be delivered pursuant to clause (a), (b), (c) or (e) of this Section (to the extent any such financial statements or other documents are included in reports or other materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which (i) the Borrower posts such financial statements or other documents, or provides a link thereto, on the Borrower’s website on the Internet or at xxxx://xxx.xxx.xxx or (ii) such financial statements or other 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 financial statements and other 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, as the case may be, and (ii) the Borrower shall notify the Administrative Agent of the posting of any such financial statements and other documents and provide to the Administrative Agent electronic versions (i.e., soft copies) thereof.
Appears in 1 contract
Financial Statements and Other Information. The Borrower Company will furnish to the Administrative Agent and (who shall promptly furnish a copy to each Lender:):
(a) as soon as available, but in any event within 90 one hundred (100) days after the end of each fiscal year of the BorrowerCompany (or, its if earlier, the 10th day after such financial statements are required to be filed with the SEC), commencing with the fiscal year ending February 28, 2018, the audited consolidated balance sheet of the Company and its Consolidated Subsidiaries and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other 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, fairly in all material respects, respects the consolidated financial condition position and results of operations of the Borrower Company and the its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP;
(b) as soon as available, but in any event within 45 fifty-five (55) days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerCompany (or, its if earlier, the 10th day after such financial statements are required to be filed with the SEC), commencing with the fiscal quarter ending May 31, 2017, the unaudited consolidated balance sheet of the Company and its Consolidated Subsidiaries and related statements of operations, stockholders' equity 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 consolidated financial condition position and results of operations of the Borrower Company and the its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of certain footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate substantially in the form of Exhibit E executed by a Financial Officer of the Borrower Company (ix) certifyingcertifying as to whether, to the knowledge of such Financial Officer's knowledge Officer after due reasonable inquiry, as to whether a Default has occurred and is continuing and, if a Default has occurredso, specifying the details thereof and any action taken or proposed to be taken with respect theretothereto and (y) in the case of any such certificate delivered for any fiscal period ending on or after the Restatement Effective Date, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate6.09;
(e) concurrently with any delivery of financial statements under paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gd) promptly after the same become publicly available, copies of all periodic annual, quarterly and other reports, current reports and proxy statements and other materials filed by the Borrower Company or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business DaySEC; and
(ie) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any Subsidiary, or compliance with the terms of any Loan Documentthis Agreement, as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably 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 Company on its website or shall have been posted on IntraLinks 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 Borrowers hereby acknowledge that the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on SyndTrak or another similar electronic system (the “Platform”).
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower, its the audited consolidated balance sheet and related statements statement of operations, stockholders' equity changes in net assets and cash flows of the Borrower 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 KPMG LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; provided that the requirements set forth in this clause (a) may be fulfilled by providing to the Administrative Agent and the Lenders the report of the Borrower to the SEC on Form 10-K for the applicable fiscal year;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, its unaudited the consolidated balance sheet and related statements statement of operations, stockholders' equity changes in net assets and cash flows of the Borrower and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of 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 sheetstatements of assets and liabilities, operations, changes in net assets and cash flows, as of the end of) the corresponding period or periods of 60 Revolving Credit Agreement the previous fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; provided that the requirements set forth in this clause (b) may be fulfilled by providing to the Lenders the report of the Borrower to the SEC on Form 10-Q for the applicable quarterly period;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) or (c) aboveof this Section, a certificate of a Financial Officer of the Borrower (i) certifyingcertifying that such statements are consistent with the financial statements filed by the Borrower with the Securities and Exchange Commission, to such Financial Officer's knowledge after due inquiry, (ii) certifying as to whether the Borrower has knowledge that a Default has occurred during the applicable period and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iiiii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.126.01, 6.136.02, 6.14 6.04 and 6.15 6.07 and (iiiiv) stating whether any change in GAAP as applied by (or in the application thereof of GAAP by) the Borrower has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 Effective Date 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Owl Rock Capital Corp)
Financial Statements and Other Information. The Borrower will furnish furnish, or cause to be furnished, to the Administrative Agent and each Lender:
(a) within 90 75 days after the end of each fiscal year of the Borrower, its the audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows of the Borrower 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 KPMG LLP PricewaterhouseCoopers LLP, or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 50 days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerBorrower (commencing with the fiscal quarter ended on or nearest to September 30, its unaudited 2007), the consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows of the Borrower and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of 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 corresponding period or periods of the previous fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) of this Section (commencing with the fiscal year ended on or (c) abovenearest to December 31, 2007), a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.126.01(b)(ii), 6.136.01(j), 6.14 6.02(g), 6.04(e), 6.05(c)(ii), 6.05(h), 6.05(i), 6.06(b) and 6.15 6.09 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(ed) concurrently with promptly following any reasonable request by the Administrative Agent therefor, delivery of financial statements under paragraph (ai) above, a certificate of the accounting firm that reported on such any financial statements under clause (a) of this Section stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines)) and (ii) management review letters, if any, received by the Borrower from such accounting firm in connection with such examination;
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(ge) 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 of its Subsidiaries with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said CommissionSEC, or with any national securities exchange, or distributed by the Borrower to its public stockholders shareholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(if) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiaryof its Subsidiaries, or compliance with the terms of any this Agreement and the other Loan DocumentDocuments, as the Administrative Agent or any Lender may reasonably request; and
(g) promptly after execution thereof, copies of any amendments to the Senior Note Purchase Agreements.
Appears in 1 contract
Samples: Credit Agreement (Teleflex Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender, including their Public-Sidexx:
(a) within 90 days after the end of each fiscal year of the Borrower, its audited consolidated (and solely to the extent that, during such year, the Borrower had any Unrestricted Subsidiaries, unaudited consolidating financial statements of the Restricted Subsidiaries, taken as a whole) balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG PricewaterhouseCoopers LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Restricted 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 Borrower, its unaudited consolidated (and solely to the extent that, during such quarter, the Borrower had any Unrestricted Subsidiaries, consolidating balance sheet and income statement of the Restricted Subsidiaries, taken as a whole) balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Restricted Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, 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 of a Financial Officer of the Borrower (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 (x) of the amount of [“Permitted Indebtedness”] (as described in [___] of the definition thereof in the Senior Note Indenture) then outstanding and then permitted to be incurred by the terms of the Senior Note Indenture and (y) demonstrating compliance with Section 6.16, (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 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate (iv) if the assets, liabilities or results of operations of any FIN 46 Subsidiary are reflected in such financial statements, attaching such additional information, all certified by a Financial Officer of the Borrower and in form and detail satisfactory to the Administrative Agent, as may be necessary to permit computation of all amounts relevant to the determination of the Borrower’s compliance with this Agreement (taking into account the fact that FIN 46 Subsidiaries and their respective assets, liabilities and results of operations are excluded from all computations made on a consolidated basis for the Borrower and its Restricted Subsidiaries hereunder) and (v) providing a schedule of all Unrestricted Subsidiaries as of the date of such certificate and, if there are any Unrestricted Subsidiaries, setting forth financial information in detail reasonably satisfactory to the Administrative Agent for the applicable period for such Unrestricted Subsidiaries;
(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 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 reports (including reports on Form 8-K), proxy statements and other financial materials filed by the Borrower or any Restricted Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the 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) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Restricted Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request;
(g) no later than 60 days following the first day of each fiscal year of the Borrower, a budget in form reasonably satisfactory to the Administrative Agent (including budgeted statements of income, sources and uses of cash and balance sheets) for the Borrower and its Restricted Subsidiaries on a consolidated basis prepared by the Borrower for each of the four fiscal quarters of such fiscal year prepared in detail, setting forth, with appropriate discussion, the principal assumptions upon which such budgets are based;
(h) promptly after the delivery thereof, copies of all financial information, proxy materials and reports which the Borrower or any of its Restricted Subsidiaries shall deliver to holders (or any trustee, agent or representative therefor) of any of its other Material Indebtedness in each case pursuant to the terms of the documentation governing such Material Indebtedness;
(i) upon the request of the Administrative Agent or the Required Lenders, within 10 Business Days 30 days after the end of each fiscal month of the first two months Borrower (other than a fiscal month ending as of each the end of a fiscal quarter of the Borrower), its unaudited consolidated balance sheet and related statements of operations operations, stockholders’ equity and cash flows as of the end of and for such fiscal month 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Restricted Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;; and
(dj) concurrently with the Borrower represents and warrants that it, its controlling Person and any delivery of Restricted Subsidiary, in each case, if any, either (i) has no registered or publicly traded securities outstanding, or (ii) files its financial statements with the SEC and/or makes its financial statements available to potential holders of its 144A securities, and, accordingly, the Borrower hereby (x) authorizes the Administrative Agent to make the financial statements to be provided under paragraph Section 5.01(a)(i) and (a), (b) or (cii) above, a certificate of a Financial Officer of along with the Borrower Credit Documents, available to Public-Sidexx xxx (iy) certifying, to such Financial Officer's knowledge after due inquiry, as to whether a Default has occurred and, if a Default has occurred, specifying agrees that at 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 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (a) above, a certificate of the accounting firm that reported on time such financial statements stating whether are provided hereunder, they obtained knowledge during shall already have been made available to holders of its securities. The Borrower will not request that any other material be posted to Public-Sidexx xxxhout expressly representing and warranting to the course Administrative Agent in writing that such materials do not constitute material non-public information within the meaning of their examination the federal securities laws or that the Borrower has no outstanding publicly traded securities, including 144A securities. Any financial statement or other material required to be delivered pursuant to this Section 5.01 shall be deemed to have been furnished to the Lenders on the date that an electronic copy of such financial statement or other material is provided to the Administrative Agent or is available to the Lenders on the website of the Securities and Exchange Commission at http://xxx.xxx.xxx; xxovided that the Borrower will furnish paper copies of such financial statements of and other materials to any Default (which certificate may be limited Lender that requests, by notice to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by that the Borrower or any Subsidiary with the Securities and Exchange Commissiondo so, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by until the Borrower receives notice from such Lender to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for cease delivering such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably requestpaper copies.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower, its audited consolidated and consolidating balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the Subsidiaries 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 Borrower, its unaudited consolidated and consolidating balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph (a), (b) or (c) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and (for distribution to each Lender:
): (a) within 90 ninety (90) days after the end of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed one hundred twenty (120) days after the end of each fiscal year of the Borrower), its the audited consolidated balance sheet statement of assets and related statements liabilities, statement of operations, stockholders' equity and statement of changes in net assets, statement of cash flows and schedule of investments of the Borrower and its consolidated Subsidiaries as of the end of and for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on certified by KPMG LLP or other 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 together with an opinion of such audit) to the effect accounting firm that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as disclosed therein) applied;
; provided that the requirements set forth in this clause (a) may be fulfilled by providing to the Administrative Agent the report of the Borrower to the SEC on Form 10-K for the applicable fiscal year; (b) within 45 forty five (45) days after the end of each of the first three (3) fiscal quarters of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed seventy-five (75) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower), its unaudited the consolidated balance sheet statement of assets and related statements liabilities, statement of operations, stockholders' equity and statement of changes in net assets, statement of cash flows and schedule of investments of the Borrower and its consolidated 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, statements of operations, statement of changes in net assets, 117 Revolving Credit Agreement statement of cash flows and schedule of investments, as of the end of) the corresponding period or periods of the previous fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as disclosed therein) applied, subject to normal year-end audit adjustments and adjustments, the absence of footnotes;
(c) within 10 Business Days after footnotes and as otherwise described therein; provided that the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting requirements set forth in each case in comparative form this clause (b) may be fulfilled by providing to the figures for Administrative Agent the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly, in all material respects, the consolidated financial condition and results of operations report of the Borrower and to the Subsidiaries SEC on a consolidated basis in accordance with GAAP consistently applied, subject to normal yearForm 10-end audit adjustments and Q for the absence of footnotes;
applicable quarterly period; (dc) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) or (c) aboveof this Section 5.01, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether the Borrower has knowledge that a Default or Event of Default has occurred and is continuing with respect to the Borrower during the applicable period and, if a Default or Event of Default has occurredoccurred and is continuing with respect to the Borrower during the most recent period covered by such financial statements (or has occurred and is continuing from a prior period), 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 6.126.01, 6.136.02, 6.14 6.04 and 6.15 6.07 and (iii) stating whether any change in GAAP as applied by (or in the application thereof of GAAP by) the Borrower has occurred since the date of Effective Date (but only if the Borrower's audited Borrower has not previously reported such change to the Administrative Agent and if such change has had a material effect on the financial statements referred or to in Section 3.04 the extent not previously disclosed on a Form 10-K or Form 10Q previously filed with the SEC), and, if any such change has occurred, specifying the effect (unless such effect has been previously reported), as determined by the Borrower, of such change on the financial statements accompanying such certificate;
; provided that the requirements set forth in this clause (ec)(iii) concurrently with any delivery of financial statements under paragraph (a) above, a certificate may be fulfilled by providing to the Administrative Agent the report 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 (which certificate may be limited Borrower to the extent required by accounting rules or guidelines);
SEC on Form 10-Q for the applicable quarterly period; (fd) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year as soon as available and in any event not later than twenty (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of 20) days after the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
each monthly accounting period (g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) ending on the sixth Business Day last day of each calendar month) of the Borrower and its Subsidiaries, a detailed report Borrowing Base Certificate as at the last day of such accounting period; (e) promptly but no later than five (5) Business Days after any Responsible Officer of the Consolidated Backlog for Borrower shall at any time have knowledge that there is a Borrowing Base Deficiency, a Borrowing Base Certificate as at the date such month, measured Responsible Officer of the Borrower has knowledge of such Borrowing Base Deficiency indicating the amount of the Borrowing Base Deficiency as at the date such Responsible Officer of the Borrower obtained knowledge of such deficiency and the amount of the Borrowing Base Deficiency as of the close of business on date not earlier than one (1) Business Day prior to the prior Business Daydate the Borrowing Base Certificate is delivered pursuant to this clause I; and
(if) promptly following upon receipt thereof copies of all significant written reports submitted to management or the board of directors of the Borrower by the Borrower’s independent public accountants in connection with each annual, interim or special audit or review of any request therefor, such other information regarding type of the operations, business affairs and financial condition statements or related internal control systems of the Borrower or any Subsidiary, of its Subsidiaries delivered by such accountants to the management or compliance with the terms board of any Loan Document, as the Administrative Agent or any Lender may reasonably request.directors of the
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Nuveen Churchill Direct Lending Corp.)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the BorrowerBorrower (or, if later, by the date the Annual Report on Form 10-K of the Borrower for such fiscal year would have been required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its audited consolidated balance sheet and related consolidated statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case case, in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the 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 BorrowerBorrower (or, if later, by the date the Quarterly Report on Form 10-Q of the Borrower for such fiscal quarter would have been required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for filing of such form), its unaudited consolidated balance sheet and related statements consolidated statement of operations, stockholders' equity and cash flows operations as of the end of and for such fiscal quarter and related consolidated statements of operations and cash flows for the then elapsed portion of the fiscal year, setting forth in each case case, in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesfootnotes (it being understood that, with respect to any such consolidated financial statements, the filing with the SEC of a Section 302 certification and a Section 906 certification by a Financial Officer of the Borrower in conjunction with any Quarterly Report on Form 10-Q of the Borrower that contains such consolidated financial statements shall be deemed to satisfy the requirement under this clause (b) to provide the specified certification by a Financial Officer of the Borrower);
(c) within 10 five Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of Compliance Certificate signed by a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether a any Default has occurred andand is continuing, if a Default has occurred, and 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 6.12, 6.12 and 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred and (iv) certifying that all notices required to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificatebe provided under Sections 5.03 and 5.11 have been provided;
(ed) concurrently with (i) within five Business Days after any delivery of financial statements under paragraph clause (a) or (b) above, the supplements to the schedule referred to in Section 4.04(a) of the Collateral Agreement and (ii) within five Business Days after any delivery of financial statements under clause (a) above, a certificate the supplements to the schedule referred to in Section 4.04(b) 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 (which certificate may be limited to the extent required by accounting rules or guidelines)Collateral Agreement;
(fe) prior to the commencement as soon as available and in any event no later than March 31 of each fiscal year of year, the Borrower, a detailed consolidated ’s budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and year, setting forth any material the assumptions used for purposes of in preparing such budget) and, promptly when available, any significant revisions of such budget;
(gf) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchangeexchange (other than registration statements on Form S-8 or, to the extent publicly available, any exhibits to any such report, proxy statement or other materials), or distributed by the Borrower to its public stockholders shareholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ig) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably request; provided that no patient-specific information shall be required to be delivered in violation of any law, rule or regulation of any Governmental Authority, and no information shall be required to be delivered if in the reasonable judgment of the applicable Loan Party’s counsel such delivery would result in the waiver of any attorney-client or other similar privilege with respect thereto. Information required to be delivered pursuant to this Section shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the Administrative Agent on an SyndTrak or similar site to which the Lenders have been granted access or shall be available on the website of the SEC at xxxx://xxx.xxx.xxx or the Borrower at xxxx://xxx.xxxxxxxxxx.xxx. Information required to be delivered pursuant to this Section may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (PharMerica CORP)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and for delivery to each Lender:
(a) within on or before the earlier of (i) the date by which the Annual Report on Form 10-K of the Borrower (after giving effect to any extension thereof) for each fiscal year is required to be filed under the rules and regulations of the SEC and (ii) 90 days after the end of each such fiscal year of the Borroweryear, its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG PricewaterhouseCoopers LLP or other independent registered public accountants accounting firm 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within on or before the earlier of (i) the date by which the Quarterly Report on Form 10-Q of the Borrower for each of the first three fiscal quarters of each fiscal year is required to be filed under the rules and regulations of the SEC (after giving effect to any extension thereof) and (ii) 45 days after the end of each of the first three fiscal quarters of each such fiscal year of the Borroweryear, its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after not later than the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 date by one of its Financial Officers as presenting fairly, in all material respects, the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of which financial statements are required to be delivered under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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, thereto and (ii) to the extent such compliance is required as of the relevant test date, setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 and Section 6.4 (iii) stating whether including reasonable identification of any change in GAAP addbacks or other adjustments favorable to the Borrower available in the application thereof applicable financial definitions that it has occurred since the date elected not to utilize as permitted by this Agreement (without any requirement for identification or quantification of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change specific charges or other items it has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under paragraph (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 Default (which certificate may be limited to the extent required by accounting rules not added back or guidelinesadjusted for));
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(id) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any SubsidiarySubsidiary (excluding any budget or forecast or comparable item), or compliance with the terms of this Agreement or with the requirements of the Patriot Act or any Loan Documentother “know your customer” or similar laws or regulations, as the Administrative Agent or or, through the Administrative Agent, any Lender may reasonably requestrequest (it being understood that the Borrower shall not be required to provide any information which is subject to confidentiality restrictions, the nature of which prohibit such disclosure notwithstanding the provisions of Section 9.12 hereof); and
(e) all information, documents and other materials that the Borrower is obligated to deliver to the Administrative Agent under this Agreement, including all notices, requests, and other reports, certificates and other information materials, but excluding any such information that (i) is required to be delivered pursuant to clauses (a) and (b) of this Section 5.1, (ii) relates to a request for a new, or a conversion of an existing, Borrowing or other extension of credit (including any Interest Election Request or Interest Period relating thereto), (iii) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (iv) provides notice of any Default or Event of Default, or (v) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing or other extension of credit hereunder (all such non-excluded information being referred to herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium in a format acceptable to the Administrative Agent. In addition, the Borrower agrees to continue to provide the Communications to the Administrative Agent in the manner specified in this Agreement, but only to the extent requested by the Administrative Agent. The Borrower further agrees that the Administrative Agent may make the Communications available to the Lenders by posting the Communications on Intralinks or a substantially similar electronic transmission system, access to which is controlled by the Administrative Agent (the “Platform”). Reports required to be delivered pursuant to clauses (a) and (b) of this Section 5.1 shall be deemed to have been delivered on the date on which the Borrower posts such reports on its website at xxx.xxxxxx.xxx or when such reports are posted on the SEC’s website at xxx.xxx.xxx; provided that the Borrower shall deliver to the Administrative Agent, not later than the date on which financial statements are required to be delivered under clause (b) above, the certification of a Financial Officer, as required by clause (b).
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish Company shall, at any time, deliver to (i) the Administrative Agent Behrman Investor Group, (ii) each other Stockholder holding at such txxx xxx percent (1%) or more of the Equity Securities (and each Lenderany other Stockholder owning 1% of the Common Stock Equivalents as of the date hereof, who shall own less than 1% of the Common Stock Equivalents on any such date as a direct result of the sale of Common Stock Equivalents by the Company in an equity financing after the date hereof in excess of $15,000,000), and (iii) the Senior Warrant Arranger (who may distribute the relevant information to any Senior Warrantholder) so long as the Senior Warrantholders on such date collectively hold at least fifty percent (50%) of the Equity Securities collectively held by them on the date hereof:
(a) within 90 forty five (45) days after the end of each fiscal year month of the BorrowerCompany other than the last such month of any fiscal quarter of the Company, its audited consolidated balance sheet and related statements of operationsearnings, stockholders' equity and cash flows of the Company for such fiscal month and consolidated balance sheets of the Company as of the end of and for such yearfiscal month, setting forth in each case in comparative form certified by the figures for the previous fiscal year, all reported on by KPMG LLP chief financial officer or other 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 consolidated financial condition and results of operations controller of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedCompany;
(b) within 45 forty five (45) days after the end of each of the first three fiscal quarters of quarterly accounting periods in each fiscal year of the Borroweryear, its unaudited consolidated balance sheet and related statements of operationsearnings, stockholders' equity and cash flows of the Company for such fiscal quarter and consolidated balance sheets of the Company as of the end of and for such fiscal quarter and quarter, certified by the then elapsed portion chief financial officer or controller 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesCompany;
(c) within 10 Business Days one hundred twenty (120) days after the end of each of the first two months of each fiscal quarter of the Borroweryear, its unaudited audited consolidated balance sheet and related statements of operations earnings, stockholders' equity and cash flows of the Company for such fiscal year, and consolidated balance sheets of the Company as of the end of and for such month and fiscal year accompanied by the then elapsed portion opinion of a nationally recognized independent accounting firm selected by the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly, in all material respects, the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;Company; and
(d) concurrently with any delivery of financial statements under paragraph within sixty (a), (b60) or (c) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge days after due inquiry, 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 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the BorrowerCompany, a detailed consolidated annual budget of the Company and its Subsidiaries for such fiscal year (including a projected consolidated balance sheet and related such annual budget to include, without limitation, budgeted statements of projected operations earnings and sources and uses of cash flow as and balance sheets) accompanied by a certificate of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower chief financial officer or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all controller of the functions Company to the effect that, to the best of said Commission, his or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) promptly following any request thereforher knowledge, such other information regarding budget is a reasonable estimate for the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably requestperiod covered thereby.
Appears in 1 contract
Financial Statements and Other Information. The Borrower For so long as the Bonds are Outstanding, the Issuer will furnish to the Administrative Agent Trustee and each Lenderthe Rating Agencies:
(a) within 90 105 days after the end of each fiscal year of the BorrowerIssuer, its (i) the audited consolidated balance sheet and related statements of operations, stockholdersmembers' equity and cash flows of the Issuer and its Subsidiaries as of the end of and for such year and (ii) the audited consolidated balance sheet and related statements of operations, members' equity and cash flows of the Issuer and the Guarantors (excluding the financial condition and results of operations of the Issuer and the Unrestricted 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 KPMG PricewaterhouseCoopers LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Issuer and the its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerIssuer, its (i) the unaudited consolidated balance sheet and related statements of operations, stockholdersmembers' equity and cash flows of the Issuer and its Subsidiaries as of the end of and for such fiscal quarter and the then then-elapsed portion of the fiscal yearyear and (ii) the unaudited consolidated balance sheet and related statements of operations, members' equity and cash flows of the Issuer and the Guarantors (excluding the financial condition and results of operations of the Issuer and the Unrestricted Subsidiaries), 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 corresponding period or periods of the previous fiscal year, all certified by one an Authorized Representative of its Financial Officers the Issuer as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower Issuer and the its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) or (c) aboveof this Section, a certificate of a Financial Officer of the Borrower an Officer's Certificate (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether to the best knowledge of the signer thereof 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 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's most recent prior audited financial statements referred delivered pursuant to in Section 3.04 6.1(a) or delivered to Holders on or prior to the Closing Date, as applicable, and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;; NRG Northeast Generating Indenture
(ed) concurrently with any delivery of financial statements under paragraph clause (a) aboveof this Section, 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 Default Defaults under clause (b) (B) (y) of the definition of "Permitted Investments" or clauses (b) or (c) of Section 6.15 (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(ge) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower Issuer or any Subsidiary of the Guarantors with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissioncommission, or with any national securities exchange, or distributed by the Borrower Issuer to its public stockholders members generally, as the case may be;
(hf) on the sixth Business Day of each calendar month, a detailed report promptly after receiving notice of the Consolidated Backlog for such monthsame, measured as copies of any information with respect to any material litigation or material governmental or environmental proceedings against the close of business on Issuer or the prior Business DayGuarantors; and
(ig) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower Issuer or any Subsidiaryof the Guarantors, or compliance with the terms of any Loan Documentthis Indenture and the other Transaction Documents, as the Administrative Agent Trustee or any Lender Majority Holders may reasonably request.
Appears in 1 contract
Samples: Indenture (NRG Energy Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the BorrowerBorrower (or, if earlier, by two (2) Business Days after the date that the Annual Report on Form 10-K of the Borrower for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG PricewaterhouseCoopers LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerBorrower (or, if earlier, by two (2) Business Days after the date that the Quarterly Report on Form 10-Q of the Borrower for such fiscal quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers or other executive officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end and audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer or other executive officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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, thereto and (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate6.11;
(ed) concurrently with as soon as available, but in any delivery of financial statements under paragraph event not more than ninety (a90) above, a certificate of days after 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 (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement end of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year copy of the plan and forecast (including a projected consolidated and consolidating balance sheet sheet, income statement and related statements of projected operations and cash funds flow as statement) of the end Borrower for each quarter of and for such the upcoming fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetin form reasonably satisfactory to the Administrative Agent;
(ge) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC or such Governmental Authority, as applicable, or with any national securities exchange, or distributed by the Borrower to its public stockholders shareholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(if) promptly following any request therefor, (x) such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably requestrequest and (y) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation. Documents required to be delivered pursuant to clauses (a), (b) and (e) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System; provided that the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent (which notice the Administrative Agent shall promptly provide to each Lender) of the filing of any such documents and, if requested by the Administrative Agent, promptly 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 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 by a Lender for delivery, and each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents to it and maintaining its 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 clause (c) of this Section 5.01 to the Administrative Agent.
Appears in 1 contract
Financial Statements and Other Information. The Borrower Holdings will furnish to the Administrative Agent and (for distribution to each Lender:Lender through the Administrative Agent):
(a) within on or before the date that is 90 days after the end of each fiscal year of Holdings or, in the Borrowercase of the fiscal year of Holdings ending May 31, its 2012, no later than 120 days after such fiscal year (or in each case such earlier date on which Holdings has filed such financial statements with the SEC), an audited consolidated balance sheet and related audited consolidated statements of operations, stockholders' equity operations and comprehensive income and cash flows of Holdings and its Subsidiaries as of the end of and for such fiscal year, in each case with all consolidating information regarding Holdings and its Restricted Subsidiaries required of a registrant under Regulation S-X, together with related notes thereto and customary management’s discussion and analysis describing results of operations, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other independent public accountants of recognized national standing (without a "“going concern" ” or like qualification or exception and without exception, or any qualification or exception as to the scope of such audit) , in each case other than a qualification related solely to the maturity of Loans and Commitments at the Revolving Maturity Date, the Term Maturity Date or the Latest Maturity Date, as applicable), to the effect that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial condition as of the end of and for such year and results of operations and cash flows of the Borrower Holdings and the its Subsidiaries (as applicable) on a consolidated basis (as applicable) in accordance with GAAP consistently applied;
(b) within 45 days after the end of with respect to each of the first three fiscal quarters of each fiscal year year, on or before the date that is 45 days after the end of each such fiscal quarter (or such earlier date on which Holdings has filed such financial statements with the BorrowerSEC), its an unaudited consolidated balance sheet and related unaudited consolidated statements of operations, stockholders' equity operations and comprehensive income 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, in each case with all consolidating information regarding Holdings and its Restricted Subsidiaries required of a registrant under Regulation S-X, 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 a Financial Officers Officer as presenting fairly in all material respects respects, as applicable, the consolidated 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 Holdings and the its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; together with customary management’s discussion and analysis describing results of operations;
(c) within 10 Business Days not later than five days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph (a), ) or (b) or above or, in the case of delivery of the financial statements under paragraph (ca) aboveabove for the fiscal year ending May 31, 2012, no later than thirty days after such delivery, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether a Default has occurred and, if a Default has occurredoccurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto, thereto and (ii) setting forth reasonably detailed calculations (A) demonstrating compliance with the covenants contained in Sections 6.12, 6.13, 6.14 6.10 and 6.15 6.11 and (iiiB) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 case of financial statements delivered under paragraph (a) above, a certificate beginning with the financial statements for the fiscal year of the accounting firm that reported on Borrower ending May 31, 2013, of Excess Cash Flow for such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines)fiscal year;
(fd) prior to not later than 90 days after the commencement of each fiscal year of the Borrower, a detailed consolidated quarterly budget for Holdings and its Subsidiaries for such fiscal year (including a projected consolidated balance sheet and related consolidated statements of projected operations operations, comprehensive income and cash flow flows as of the end of and for such fiscal year and setting forth any the material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget);
(ge) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and registration statements (other materials 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 Holdings or any Subsidiary of the Restricted Subsidiaries with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, SEC or with any national securities exchange, or distributed by Holdings or any of the Borrower Restricted Subsidiaries to the holders of its public stockholders Equity Interests generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(if) 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 Subsidiaryof the 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 (including with respect to management’s discussion and analysis) may be satisfied with respect to financial information of Holdings 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; 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 Holdings and its Restricted 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 KPMG LLP 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, in each case other than a qualification related solely to the maturity of Loans and Commitments at the Revolving Maturity Date, the Term Maturity Date or the Latest Maturity Date, as applicable. Documents required to be delivered pursuant to Section 5.01(a), (b), (d) or (e) 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 on Schedule 9.01 (or otherwise notified pursuant to Section 9.01(d)); 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 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 Lead Arranger will make available to the Lenders and the Issuing Banks 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 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 Lead Arranger, 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 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 through a portion of the Platform designated “Public Side Information”; and (z) the Administrative Agent and the Lead 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 Platform not designated “Public Side Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to mxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Credit Agreement (Schiff Nutrition International, Inc.)
Financial Statements and Other Information. The Borrower Company will furnish to the Administrative Agent and (with a copy for each Lender:):
(a) within 90 days after the end of each fiscal year of the BorrowerCompany, its audited consolidated balance sheet and related statements of operations, stockholders' equity income and cash flows as of the end of and for such year, setting forth forth, in each the case in of statements of income and cash flows, comparative form the figures for the previous fiscal year, all reported on by KPMG PricewaterhouseCoopers LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Company and the 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 60 of each fiscal year of the BorrowerCompany, its unaudited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows operations as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year and statements of cash flow for 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 (orforth, in the case of statements of operations and cash flows, comparative figures for the balance sheet, as corresponding periods of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after prior to the end of each consummation of the first two months of each fiscal quarter Spin-off, copies of the Borrower, its unaudited consolidated final form of the Information Statement relating to the Spin-off and copies of the Company's pro forma condensed balance sheet and related statements of operations and cash flows as of the end most recently ended fiscal quarter and related statement of and operations for such month and period, prepared giving effect to the then elapsed portion Spin-off as if it had occurred on the first day 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotessuch period;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (c) above, a certificate of a Financial Officer of the Borrower Company (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 6.05 and 6.15 6.06 and (iii) stating whether any material change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 affecting the Company 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 paragraph 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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) promptly after the same become publicly available, copies of all periodic and other reports, material reports (other than reports relating to employee benefit matters or employment plans) and proxy statements and other materials filed by the Borrower Company or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower Company to its public stockholders share holders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report and all material amendments to any of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Dayforegoing; and
(ig) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any Subsidiary, or compliance with the terms of any Loan Documentthis Agreement or the Spin-off Documents, as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Moodys Corp /De/)
Financial Statements and Other Information. (a) The Borrower will furnish the following to the Administrative Agent and (for delivery to each Lender:):
(ai) as soon as available and in any event within 90 days after the end of each fiscal year of Fiscal Year commencing with the BorrowerFiscal Year ending December 31, 2018, its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of such Fiscal Year and the related statements of income and cash flows for such yearFiscal Year, setting forth in each case in comparative form the figures for the previous fiscal yearFiscal Year, all reported on by KPMG LLP PricewaterhouseCoopers LLC or other independent another “registered public accountants accounting firm” as defined in Section 2 of recognized national standing the Xxxxxxxx-Xxxxx Act of 2002 (without a "“going concern" ” or like qualification or exception and without any qualification or exception as to the scope of such auditaudit except as permitted by the Exchange Act and the regulations promulgated thereunder) to the effect that such consolidated financial statements present fairly, as presenting fairly in all material respectsrespects the financial position, the consolidated financial condition and results of operations and cash flows of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP;
(bii) as soon as available and in any event within 45 days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal year of the BorrowerFiscal Year, its unaudited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of such Fiscal Quarter and the related statement of income for such fiscal quarter Fiscal Quarter and statements of income and cash flows for the then elapsed portion of the fiscal yearsuch 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 yearFiscal Year, all certified by one of its a Financial Officers Officer as presenting fairly in (x) reflecting all material respects the consolidated financial condition adjustments (which adjustments are normal and results of operations recurring unless otherwise disclosed) necessary for a fair presentation of the Borrower results for the period covered and the Subsidiaries on a consolidated basis (y) having been prepared in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence applicable rules of footnotesthe SEC;
(ciii) as soon as available and in any event within 10 Business Days 30 days after the end of each of the first two months of each fiscal quarter of the Borrower, month (x) its unaudited consolidated balance sheet shipment and related statements of operations and cash flows as of the end of and average selling price data for such month and for the then elapsed portion of the fiscal year, setting forth Fiscal Year and (y) the additional monthly financial information described in each case in comparative form the figures for the corresponding period or periods of (or, and substantially in the case of the balance sheet, as of the end form of) the previous fiscal yearSchedule 5.01, all certified as to accuracy by one of its a Financial Officers as presenting fairly, in all material respects, the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesOfficer;
(div) concurrently with any each delivery of financial statements under paragraph clause (a), (bi) or (c) aboveii), a certificate of a Financial Officer of the Borrower (ix) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether a Default has occurred and is continuing and, if a Default has occurredoccurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iiy) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 the applicable provisions of Section 6.03 and (iiiz) stating whether identifying any change change(s) in GAAP or in the application thereof has occurred that have become effective since the date of of, and have had an effect on, the Borrower's ’s most recent audited financial statements referred to in Section 3.04 or delivered pursuant to this Section (and, if any such change has occurredbecome effective, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(fv) prior to no later than 60 days after the commencement beginning of each fiscal year Fiscal Year commencing with the Fiscal Year ending December 31, 2018, a forecast of the Borrowerfollowing for each Fiscal Quarter of such Fiscal Year: estimates of operating income, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations depreciation, Consolidated EBITDA, Consolidated Interest Expense, Consolidated Cash Interest Expense, operating cash flow, Capital Expenditures and cash flow as balances, estimates of the end Eligible Receivables and estimates of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetEligible Inventory;
(gvi) promptly after the same become publicly available, copies of all periodic and other reports, material reports and proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may beSEC;
(hvii) on promptly upon the sixth Business Day effectiveness of each calendar monthany material amendment or modification of, a detailed report or any waiver of the Consolidated Backlog for such month, measured as rights of the close Borrower or any of business on its Subsidiaries under any document evidencing any Permitted Supply Chain Financing, written notice of such amendment, modification or waiver describing in reasonable detail the prior Business Daypurpose and substance thereof;
(viii) written notice of any change in the Borrower’s Senior Debt Ratings by either Xxxxx’x, Fitch or S&P; and
(iix) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiaryand its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request; including information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the US PATRIOT Act, the Beneficial Ownership Regulation or other applicable anti-money laundering laws. Information required to be delivered pursuant to this Section 5.01(a) shall be deemed to have been delivered on the date on which the Borrower provides notice to the Administrative Agent that such information has been posted on the Borrower’s website on the Internet at the website address listed on the signature pages hereof, at xxxxx://xxx.xxx.xxx/cgi-bin/browse-xxxxx?CIK=x&owner=exclude&action=getcompany&Find=Search or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 5.01(a)(iv) and (ii) the Borrower shall deliver paper copies of the information referred to in Section 5.01(a)(i), Section 5.01(a)(ii) and Section 5.01(a)(vi) to the Administrative Agent for any Lender which requests such delivery.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and Agent, which will make available by means of electronic posting to each Lender:
(a) within 90 95 days after the end of each fiscal year of the Borrower, its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case setting forth in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 50 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, its unaudited consolidated balance sheet and related statements of operations, 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 setting forth 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 a Financial Officers Officer as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days 95 days after the end of each of the first two months of each fiscal quarter year of the Borrower, its unaudited consolidated consolidating balance sheet and related statements of operations in respect of each of (i) AmerisourceBergen Drug Company, (ii) PharMerica, Inc. and cash flows (iii) all other Subsidiaries, taken as a whole, in each case as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 6.11 and 6.15 6.12 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's ’s audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) promptly after the same become publicly available, the Borrower will provide to each Lender 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders shareholders generally, as the case may be;
(hf) on promptly following a request therefor, any documentation or other information that a 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 sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business DayUSA Patriot Act; and
(ig) promptly following any request therefor, such other information regarding the operations, business affairs affairs, assets and financial condition of the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent Agent, or any Lender through the Administrative Agent, may reasonably request, it being understood that the Borrower may require any Lender receiving such information to confirm in writing its confidentiality obligations under Section 9.12. Information required to be delivered pursuant to this Section shall be deemed to have been delivered on the date on which the Borrower provides notice to the Administrative Agent that such information has been posted on the Borrower’s website on the Internet at xxxx://xxx.xxxxxxxxxxxxxxxxx.xxx or at the appropriate Borrower designated website at xxxx://xxx.xxx.xxx or xxxx://xxxxxxxxxx.xxx; provided that the Borrower shall deliver paper copies of the information referred to in this Section after the date delivery is required thereunder to any Lender which requests such delivery within 5 Business Days after such request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Section 5.01. Administrative Agent and Agent, for distribution to each Lender:
(a) : within 90 days after the end of each fiscal year of the Borrower, its commencing with the (a) fiscal year ending December 31, 2017, the audited consolidated balance sheet and related statements of operations, stockholders' changes in equity and cash flows as of the end of and for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal c ase i n c omparative f orm t he f igures f or t he p revious f iscal y ear, o f t he B orrower a nd i ts consolidated Subsidiaries as of such year, all reported on by KPMG Xxxxx Xxxxxxxx LLP or other independent public accountants of recognized national standing (without a "“going concern" ” or like qualification or exception and without any a nd w ithout a ny q ualification o r e xception a s t o t he s cope o f s uch a xxxx ( other t han a ny exception, qualification or exception as explanatory paragraph with respect to or resulting from an upcoming maturity date under this Agreement occurring within one year from the scope of time such auditopinion is delivered)) to the effect that such consolidated financial statements present fairly, in all material respects, the consolidated financial t hat s uch c onsolidated f inancial s tatements p resent f airly i n a ll m aterial r espects t he f inancial condition and results of operations of the Borrower and the 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 Fiscal Quarters of each fiscal year (b) of the BorrowerBorrower (commencing with the Fiscal Quarter ended June 30, its unaudited 2017), the consolidated balance sheet and related statements of operations, stockholders' equity operations and cash flows as of the end of and for such fiscal quarter 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 yeary ear, o f the B orrower a nd the consolidated Subsidiaries, all certified by one of its Financial Responsible Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on B orrower a consolidated basis in accordance with GAAP nd i ts c onsolidated S ubsidiaries o n a c onsolidated b xxxx x x x ccordance w ith G AAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) ; concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a (c) certificate of a Financial Responsible Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether a Default has occurred and is continuing on such date and, if a Default has occurredoccurred and is continuing on such date, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) if the Borrower has any Unrestricted Subsidiaries during the related fiscal period, setting forth in a reasonably detailed calculations demonstrating compliance with Sections 6.12schedule, 6.13a c omparison o f t he c onsolidated r esults u nder c xxxxx ( a) o r ( b) a xxxx w ith t he f inancial condition and results of operations of the Borrower and its consolidated Restricted Subsidiaries and, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date case of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) a certificate delivered concurrently with any the delivery of financial statements under paragraph clause (a) aboveabove only, a certificate of the accounting firm that reported on such beginning with financial statements stating whether they obtained knowledge during for the course fiscal year ending December 31, 2018, setting forth the Borrower’s calculation of their examination of such Excess Cash Flow and (iv) beginning with financial statements of any Default (which certificate may be limited to for the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of ending December 31, 2020, setting forth the Borrower’s calculation of its Total Leverage Ratio and Total Net Leverage Ratio; promptly a fter t he s ame b ecome p ublicly a vailable, c opies o f a detailed consolidated budget for such fiscal year ll p eriodic a nd o ther (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budgetd) and, promptly when available, any significant revisions of such budget;
(g) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
; promptly f ollowing a ny r equest t herefor, s uch o ther i nformation r egarding t he (he) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Documentthis Agreement, as the Administrative Agent or any Lender through the Administrative Agent may reasonably request.request in writing; - 81-
Appears in 1 contract
Samples: Credit Agreement (Maxlinear Inc)
Financial Statements and Other Information. The Borrower and its Subsidiaries will furnish to the Administrative Agent and Agent, on behalf of each Lender:
(a) within (i) on or before the date that is 90 days after the end of each fiscal year of the Lead Borrower, its commencing with the fiscal year of the Lead Borrower ended on or about December 31, 2021, the audited consolidated balance sheet and related audited consolidated statements of operationsoperations and comprehensive income, stockholders' shareholders’ equity and cash flows of the Lead Borrower and its Subsidiaries as of the end of and for such year, and related notes thereto, setting forth in each case case, in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP BDO, Deloitte or other independent public accountants of recognized national standing (without a "“going concern" ” or like qualification or exception and without any material qualification or exception as to the scope of such auditaudit (other than with respect to, or resulting from, (A) an upcoming maturity date of any indebtedness for borrowed money or (B) any actual or potential breach or inability to satisfy a financial covenant under any indebtedness for borrowed money)) to the effect that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial condition as of the end of and for such year and results of operations and cash flows of the Lead Borrower and the such Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedapplied and (ii) management’s discussion and analysis of the important operational and financial developments during such fiscal year;
(b) within 45 (i) on or before the date that is 30 days after the end of each of the first three fiscal quarters of each fiscal year of the Lead Borrower, its commencing with the first fiscal quarter of the Lead Borrower ended after the Effective Date, the unaudited consolidated balance sheet and related unaudited consolidated statements of operationsoperations and comprehensive income, stockholders' shareholders’ equity and cash flows of the Lead Borrower 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 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 a Financial Officers Officer as presenting fairly in all material respects the consolidated 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 Lead Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesfootnotes and (ii) management’s discussion and analysis of the important operational and financial developments during such fiscal quarter;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes[reserved];
(d) concurrently with not later than ten (10) Business Days of any delivery of financial statements under paragraph (a) above, a reasonably detailed annual budget for the Borrower and its Subsidiaries on a consolidated basis, in a form customarily prepared by the Lead Borrower or otherwise as may be reasonably agreed between the Lead Borrower and the Administrative Agent (it being agreed that such annual budget shall not be provided to Public Lenders), ;
(be) not later than five (5) days after any delivery of financial statements under paragraph (a) or (cb) above, a certificate (a “Compliance Certificate”) of a Financial Officer in the form of the Borrower Exhibit E hereof (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether a Default has occurred then exists and, if a Default has occurreddoes then exist, specifying the details thereof and any action taken or proposed to be taken with respect thereto, thereto and (ii) setting forth reasonably detailed calculations (A) to the extent the Financial Maintenance Covenants are then required to be tested, demonstrating compliance with Sections 6.12the Financial Maintenance Covenants, 6.13, 6.14 and 6.15 and (iiiB) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 case of financial statements delivered under paragraph (a) above, a certificate beginning with the financial statements for the fiscal year of the accounting firm that reported Lead Borrower ending on or about December 31, 2021, of Excess Cash Flow for such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines)fiscal year;
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget[reserved];
(g) [reserved];
(h) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and registration statements (other materials 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 Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, SEC or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Document, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably requestrequest in writing. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 may be satisfied with respect to financial information of the 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 within the applicable time periods required by applicable law and regulations; provided that such materials are accompanied by a report and opinion of BDO, Deloitte 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 (other than with respect to, or resulting solely from, (i) an upcoming maturity date of any indebtedness for borrowed money or (ii) any actual or potential breach or inability to satisfy a financial covenant under any indebtedness for borrowed money). Documents required to be delivered pursuant to Section 5.01(a), (b) or (h) (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 Lead Borrower posts such documents, or provides a link thereto on the Lead 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 documents are posted on the Lead 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). 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. 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) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent (or any Lender (or their respective representatives or contractors)) is prohibited by applicable law, (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product or (iv) 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 5.01) to any third party. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the 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 Non-Public Information and who may be engaged in investment and other market-related activities with respect to the Borrower’s or its Affiliates’ 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 Bookrunners, and the Lenders to treat such Borrower Materials as not containing any Material Non-Public Information (although it may be sensitive and proprietary) (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 through a portion of the Platform designated “Public Side Information”; and (z) the Administrative Agent and the Lead 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 Platform not designated “Public Side Information”; provided that the Borrower’s failure to comply with this sentence shall not constitute a Default or an Event of Default under this Agreement or the Loan Documents. Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower Materials as “PUBLIC”. Each Loan Party hereby acknowledges and agrees that, unless the Borrower notifies the Administrative Agent in advance, all financial statements and certificates furnished pursuant to Sections 5.01(a), (b) and (e) above are hereby deemed to be suitable for distribution, and to be made available, to all Lenders and may be treated by the Administrative Agent and the Lenders as not containing any Material Non-Public Information.
Appears in 1 contract
Samples: First Lien Credit Agreement (Franchise Group, Inc.)
Financial Statements and Other Information. (a) The Borrower Borrowers will furnish to the Administrative Agent and each Lenderthe Lenders:
(ai) within 90 ninety (90) days after the end of each fiscal year of the Lead Borrower, its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all audited and reported on by KPMG LLP or other independent public accountants of recognized national standing (without a "“going concern" ” or like qualification or exception and without any a qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial condition and results of operations of the Lead Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;GAAP; and
(bii) within 45 forty-five (45) days after the end of each fiscal quarter of the first three fiscal quarters of each fiscal year of the Lead Borrower, its unaudited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such fiscal quarter and for the then elapsed portion of the current fiscal year, setting forth with comparative results to the same fiscal periods of the prior fiscal year, in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Lead Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-year end audit adjustments and the absence of footnotes;; and
(ciii) within 10 Business Days thirty (30) days after the end of each fiscal month of the first two months of each fiscal quarter of the Lead Borrower, its unaudited consolidated balance sheet and related statements of operations operations, stockholders’ equity and cash flows as of the end of and for such fiscal month and for the then elapsed portion of the current fiscal year, setting forth with comparative results to the same fiscal periods of the prior fiscal year, 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, respects the consolidated financial condition and results of operations of the Lead Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-year end audit adjustments and the absence of footnotes;; and
(div) concurrently with any delivery of financial statements under paragraph clause (a), (bi) or (cii) above, a certificate of a Financial Officer of the Lead Borrower in the form of Schedule 5.01(a)(iv) (i) certifying, to the best knowledge of such Financial Officer's knowledge after due inquiry, 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, and (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Lead Borrower's ’s audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;; and
(ev) concurrently with any delivery of financial statements under paragraph within sixty (a60) 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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to days after the commencement of each fiscal year of the Lead Borrower, a detailed consolidated budget by month for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budgetyear) and, promptly when available, any significant revisions of such budget;; and
(gvi) promptly after the same become publicly available, copies of all periodic reports on Forms 10-K and other reports, 10-Q and proxy statements and other materials filed by the Lead 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, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;.
(hb) on The Borrowers will furnish to the sixth Administrative Agent and the Co-Collateral Agent:
(i) within ten (10) Business Day Days after the end of each calendar month (or such later date as agreed by the Administrative Agent, but in no event later than thirteen (13) Business Days after the end of each month), a detailed report certificate in the form of Exhibit D (a “Borrowing Base Certificate”) showing the Consolidated Backlog for such month, measured Borrowing Base as of the close of business on the prior Business Daylast day of the immediately preceding month, each such Certificate to be certified as complete and correct on behalf of the Borrowers by a Financial Officer of the Lead Borrower, provided, however, if and so long as either (A) a Specified Event of Default exists, or (B) Excess Availability is less than or equal to 15% of the lesser of (1) the Total Commitments or (2) the Borrowing Base, such Borrowing Base Certificate (showing the Borrowing Base as of the close of business on the last day of the immediately preceding week) shall be furnished weekly on Wednesday of each week; and
(iii) the financial and collateral reports described on Schedule 5.01(b)(ii), at the times set forth in such Schedule; and
(iii) after the occurrence and during the continuance of an Event of Default, promptly upon receipt thereof, copies of all reports submitted to the Lead Borrower by independent certified public accountants in connection with each annual, interim or special audit of the books of the Lead Borrower and its Subsidiaries made by such accountants, including any management letter submitted by such accountants to management in connection with their annual audit, but excluding any accountant “agreed upon procedures” report; and
(iv) within ten (10) Business Days after the end of each month, an aging of the Accounts due with respect to the “Builders Install Initiative” as of the close of business on the last day of the immediately preceding month; and
(v) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any SubsidiaryLoan Party, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.01 may be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Lead Borrower posts such documents, or provides a link thereto on the Lead Borrower’s website on the Internet at the website address listed on Schedule 5.01; or (ii) on which such documents are posted on the Lead 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 Lead Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Lead 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 Lead 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. 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 Loan Parties 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 Loan Parties hereby acknowledge that (a) the Administrative Agent will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Loan Parties 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 Loan Parties or their securities) (each, a “Public Lender”). The Loan Parties hereby agree that they 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 Loan Parties shall be deemed to have authorized the Administrative Agent, 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 Loan Parties or their 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 shall be 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.”
Appears in 1 contract
Financial Statements and Other Information. The Borrower Holdings will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the BorrowerHoldings, its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG PricewaterhouseCoopers LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of Holdings, the Borrower and the 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 BorrowerHoldings, its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of Holdings, the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days 30 days after the end of each of the first two fiscal months of each fiscal quarter of the BorrowerHoldings, its unaudited consolidated balance sheet and related statements of operations operations, stockholders' equity and cash flows as of the end of and for such fiscal month 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, respects the consolidated financial condition and results of operations of Holdings, the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower Holdings (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 6.12 and 6.15 6.13 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's Holdings' audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) at least 30 days prior to the commencement of each fiscal year of the BorrowerHoldings, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by Holdings, 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, or with any national securities exchange, or or, in the event the Holdings becomes a publicly traded company, distributed by the Borrower Holdings to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ih) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of Holdings, the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Semiconductor Components Industries LLC)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and for distribution to each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed one hundred twenty (120) days after the end of each fiscal year of the Borrower), its commencing with the fiscal year ending December 31, 2022, the audited consolidated balance sheet statements of assets and related liabilities, statements of operations, stockholders' equity changes in net assets and cash flows of the Borrower and its consolidated 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 KPMG LLP or any other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as disclosed therein) applied;
(b) within 45 forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed seventy-five (75) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower), its unaudited the consolidated balance sheet statements of assets and related liabilities, statements of operations, stockholders' equity changes in net assets and cash flows of the Borrower and its consolidated 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 corresponding period or periods of the previous fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as disclosed therein) applied, subject to normal year-end audit adjustments and adjustments, the absence of footnotesfootnotes and as otherwise described therein;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) or (c) aboveof this Section 5.01, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether the Borrower has knowledge of a violation of this Agreement (including the occurrence of any event described in Article VII) that has resulted in the occurrence and continuation of a Default has occurred hereunder during the applicable period and, if a Default has occurredoccurred and is continuing, specifying the details thereof and any action which the Borrower has taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.126.01(b), 6.136.01(g), 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and6.01(i), if any such change has occurred6.01(m), specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under paragraph (a) above6.01(n), 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 Default (which certificate may be limited to the extent required by accounting rules or guidelines6.02(d);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and6.02(e), promptly when available6.03(c), any significant revisions of such budget;
(g) promptly after the same become publicly available6.03(d), 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably request.6.03(e),
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Blue Owl Technology Income Corp.)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the BorrowerBorrower (or, if earlier, by the date that the Annual Report on Form 10-K of the Borrower for such fiscal year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Deloitte & Touche LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerBorrower (or, if earlier, by the date that the Quarterly Report on Form 10-Q of the Borrower for such fiscal quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its unaudited consolidated balance sheet and related statements of operations, stockholders' equity 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 consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether a Default has occurred and, if a Default has occurred, specifying (in reasonable detail) 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 6.12, 6.13, 6.14 and 6.15 Section 6.12 and (iii) stating whether any material change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such material change has occurred, specifying (in reasonable detail) the effect of such change on the financial statements accompanying such certificate;
(ed) concurrently with any delivery of financial statements under paragraph 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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(fe) prior to within sixty (60) days after the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year copy of the plan and forecast (including a projected consolidated and consolidating balance sheet sheet, income statement and related statements of projected operations and cash funds flow as statement) of the end Borrower for each quarter of and for such the upcoming fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetyear;
(gf) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower to its public stockholders shareholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ig) 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 any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to clauses (a), (b) and (f) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the compliance certificates required by clause (c) of this Section 5.01 to the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Financial Statements and Other Information. The Borrower Company will furnish to the Administrative Agent and each LenderAgent:
(a) within 90 days after the end of each fiscal year of the BorrowerCompany, its audited consolidated balance sheet and related consolidated statements of operationsearnings, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Deloitte & Touche LLP or other independent registered public accountants accounting firm 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 consolidated financial condition position and results of operations and cash flows of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerCompany, its unaudited condensed consolidated balance sheet and related condensed consolidated statements of operations, stockholders' equity earnings 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 fairly, in all material respects respects, the consolidated financial condition position and results of operations and cash flows of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, Company 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 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gd) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower Company or any Subsidiary of the Subsidiaries with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower Company to its public stockholders shareholders generally, as the case may bebe (other than (i) registration statements on Form S-8, (ii) filings under Sections 16(a) or 13(d) of the Exchange Act, (iii) routine filings related to employee benefit plans, (iv) filings made by any Broker Dealer Subsidiary in the ordinary course of business and (v) any other reports, statements or filings made by any Broker Dealer Subsidiary that are not, individually or in the aggregate, material to the Company and the Subsidiaries, taken as a whole);
(he) on promptly, but not later than five Business Days after the sixth Business Day publication of each calendar monthany change by Xxxxx’x, a detailed report S&P or Fitch in its Rating, notice of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Daychange; and
(if) promptly following any request therefor, (i) any documentation or other information that the Administrative Agent or any Lender requests that is required in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation, and (ii) such other information regarding the operations, business affairs and financial condition of the Borrower Company or any Subsidiaryof the Subsidiaries, or compliance with the terms of any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably requestrequest (it being understood that, in the case of clause (ii), the Company and the Subsidiaries shall not be required to provide any information or documents that are subject to confidentiality provisions prohibiting such disclosure). Information required to be delivered pursuant to clauses (a), (b) and (d) of this Section shall be deemed to have been delivered on the date on which the Company posts such information on the Company’s website on the Internet at xxx.xxxxxxxxxx.xxx or when such information is publicly posted on the SEC’s website at xxx.xxx.xxx or is posted on an Electronic System. Notices required to be delivered pursuant to clause (e) of this Section shall be deemed to have been delivered on the date on which the Company publicly posts such information on the Internet at the website xxx.xxxxxxxxxx.xxx or when the publication is first made available by means of Xxxxx’x, S&P’s or Fitch (as the case may be) Internet subscription service. The Administrative Agent shall promptly make available to each Lender a copy of any certificate delivered pursuant to clause (c) of this Section by posting such certificate on an Electronic System.
Appears in 1 contract
Samples: Term Credit Agreement (Broadridge Financial Solutions, Inc.)
Financial Statements and Other Information. The Borrower will furnish Each of KSI and KHC agree to, at any time until such company files periodic financial statements with the SEC pursuant to the Administrative Agent Exchange Act, deliver or cause to be delivered, to (i) the Behrman Investor Group, (ii) each Senior Unitholder and (iii) each Lenderotxxx Xxxtholder holding at such time one percent (1%) or more of the Common Unit Equivalents:
(a) within 90 forty five (45) days after the end of each fiscal year month of such company other than the Borrowerlast such month of any fiscal quarter of such company, its audited consolidated balance sheet and related statements of operationsearnings, stockholders' equity and cash flows of each such company for such fiscal month and consolidated balance sheets of such company as of the end of and for such yearfiscal month, setting forth in each case in comparative form certified by the figures for the previous fiscal year, all reported on by KPMG LLP chief financial officer or other 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 controller of such audit) to the effect that such consolidated financial statements present fairly, in all material respects, the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedcompany;
(b) within 45 forty five (45) days after the end of each of the first three fiscal quarters of (3) quarterly accounting periods in each fiscal year of the Borroweryear, its unaudited consolidated balance sheet and related statements of operationsearnings, stockholders' equity and cash flows of such company for such fiscal quarter and consolidated balance sheets of such company as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal yearquarter, 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 the chief financial officer or controller of its Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotessuch company;
(c) within 10 Business Days one hundred twenty (120) days after the end of each of the first two months of each fiscal quarter of the Borroweryear, its unaudited audited consolidated balance sheet and related statements of operations earnings, stockholders' equity and cash flows of such company for such fiscal year, and consolidated balance sheets of each such company as of the end of and for such month and fiscal year accompanied by the then elapsed portion opinion 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 a nationally recognized independent accounting firm selected by one of its Financial Officers as presenting fairly, in all material respects, the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;such company; and
(d) concurrently with any delivery of financial statements under paragraph within sixty (a), (b60) or (c) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge days after due inquiry, 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 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrowersuch company, a detailed consolidated annual budget of each such company and its Subsidiaries for such fiscal year (including a projected consolidated balance sheet and related such annual budget to include, without limitation, budgeted statements of projected operations earnings and sources and uses of cash flow as and balance sheets) accompanied by a certificate of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower chief financial officer or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day controller of each calendar monthsuch company to the effect that, a detailed report to the best of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) promptly following any request thereforhis or her knowledge, such other information regarding budget is a reasonable estimate for the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably requestperiod covered thereby.
Appears in 1 contract
Financial Statements and Other Information. The Borrower Company will furnish to the Administrative Agent and each LenderLender through the Administrative Agent:
(a) within 90 ninety (90) days after the end of each fiscal year Fiscal Year of the BorrowerCompany (or, if earlier, by the date that the Annual Report on Form 10-K of the Company for such Fiscal Year would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its audited consolidated balance sheet and related statements of operationsincome, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal yearFiscal Year, all reported on by KPMG Deloitte & Touche, LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 sixty (60) days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal year Fiscal Year of the BorrowerCompany (or, if earlier, by the date that the Quarterly Report on Form 10- Q of the Company for such Fiscal Quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its unaudited consolidated balance sheet and related statements of operationsincome, stockholders' ’ equity and cash flows as of the end of and for such fiscal quarter Fiscal Quarter and the then elapsed portion of the fiscal yearFiscal 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 yearFiscal Year, all certified by one of its Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower Company (i) certifying, to such Financial Officer's stating that he or she has obtained no knowledge after due inquiry, as to whether that a Default has occurred (except as set forth in such certificate) 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 6.12, 6.13, 6.14 and 6.15 Section 6.07 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gd) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower Company or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ie) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any Subsidiary, or compliance with the terms of any Loan Document, Subsidiary as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to clauses (a), (b) and (d) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System. Notwithstanding anything contained herein, in every instance the Company shall be required to provide paper copies of the compliance certificates required by clause (c) of this Section 5.01 to the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Coach Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 on the date that is the earliest of (i) the date on which the same shall have been filed with the SEC, (ii) the date the same are required to be filed with the SEC (without regard to any extension of the SEC’s filing requirements) and (iii) the day which is 120 days after the end of each fiscal year of the Borrower, its the audited consolidated balance sheet and related statements of operationsincome, stockholders' ’ equity and cash flows of the Borrower 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 KPMG Xxxxx Xxxxxxxx LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP;
(b) within 45 on the date that is the earliest of (i) the date on which the same shall have been filed with the SEC, (ii) the date the same are required to be filed with the SEC (without regard to any extension of the SEC’s filing requirements) and (iii) the day which is 60 days after the end of each of the first three fiscal quarters quarterly periods of each fiscal year of the Borrower, its unaudited the consolidated balance sheet sheets and related consolidated statements of operations, stockholders' equity income and cash flows of the Borrower and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of 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 corresponding period or periods of the previous fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph (a), ) or (b) or (c) aboveof this Section, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.127.01, 6.13, 6.14 7.06 and 6.15 7.11 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 4.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(ed) concurrently with any delivery of financial statements under paragraph (a) aboveof this Section, 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 Event of Default arising as a result of non-compliance with Article VII, including Section 7.11 (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) promptly upon receipt thereof, copies of all other reports submitted to the Borrower by its independent certified public accountants in connection with any annual or interim audit or review of the books of the Borrower made by such accountants;
(f) prior to annually, as soon as available, but in any event within 120 days after the commencement last day of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as consolidating projections of the end Borrower and its Subsidiaries for the following five fiscal years of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetthe Borrower;
(g) promptly following receipt thereof, copies of any documents described in Sections 101(k) or 101(l) of ERISA that any Group Member or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided, that if the Loan Parties or any of their ERISA Affiliates have not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, then, upon reasonable request of the Administrative Agent, the Group Members and/or their ERISA Affiliates shall promptly make a request for such documents or notices from such administrator or sponsor and the Borrower shall provide copies of such documents and notices promptly after receipt thereof; and
(h) if applicable, 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 Group Member with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders shareholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any SubsidiaryGroup Member, or compliance with the terms of any this Agreement and the other Loan DocumentDocuments, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Sections 6.01(a), (b) or, if applicable (h) (to the extent any such documents are included in materials otherwise filed with the SEC) 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 or (ii) on which such 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 the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and provide the Administrative Agent with electronic mail versions of such documents.
Appears in 1 contract
Samples: Credit Agreement (Griffon Corp)
Financial Statements and Other Information. (a) The Borrower will furnish the following to the Administrative Agent and (for delivery to each Lender:):
(ai) as soon as available and in any event within 90 days after the end of each fiscal year of Fiscal Year commencing with the BorrowerFiscal Year ending December 31, 2017, its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of such Fiscal Year and the related statements of income and cash flows for such yearFiscal Year, setting forth in each case in comparative form the figures for the previous fiscal yearFiscal Year, all reported on by KPMG LLP PricewaterhouseCoopers LLC or other independent another “registered public accountants accounting firm” as defined in Section 2 of recognized national standing the Xxxxxxxx-Xxxxx Act of 2002 (without a "“going concern" ” or like qualification or exception and without any qualification or exception as to the scope of such auditaudit except as permitted by the Exchange Act and the regulations promulgated thereunder) to the effect that such consolidated financial statements present fairly, as presenting fairly in all material respectsrespects the financial position, the consolidated financial condition and results of operations and cash flows of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP;
(bii) as soon as available and in any event within 45 days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal year of the BorrowerFiscal Year, its unaudited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of such Fiscal Quarter and the related statement of income for such fiscal quarter Fiscal Quarter and statements of income and cash flows for the then elapsed portion of the fiscal yearsuch 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 yearFiscal Year, all certified by one of its a Financial Officers Officer as presenting fairly in (x) reflecting all material respects the consolidated financial condition adjustments (which adjustments are normal and results of operations recurring unless otherwise disclosed) necessary for a fair presentation of the Borrower results for the period covered and the Subsidiaries on a consolidated basis (y) having been prepared in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence applicable rules of footnotesthe SEC;
(ciii) as soon as available and in any event within 10 Business Days 30 days after the end of each of the first two months of each fiscal quarter of the Borrower, month (x) its unaudited consolidated balance sheet shipment and related statements of operations and cash flows as of the end of and average selling price data for such month and for the then elapsed portion of the fiscal year, setting forth Fiscal Year and (y) the additional monthly financial information described in each case in comparative form the figures for the corresponding period or periods of (or, and substantially in the case of the balance sheet, as of the end form of) the previous fiscal yearSchedule 5.01, all certified as to accuracy by one of its a Financial Officers as presenting fairly, in all material respects, the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesOfficer;
(div) concurrently with any each delivery of financial statements under paragraph clause (a), (bi) or (c) aboveii), a certificate of a Financial Officer of the Borrower (ix) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether a Default has occurred and is continuing and, if a Default has occurredoccurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iiy) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 the applicable provisions of Section 6.03 and (iiiz) stating whether identifying any change change(s) in GAAP or in the application thereof has occurred that have become effective since the date of of, and have had an effect on, the Borrower's ’s most recent audited financial statements referred to in Section 3.04 or delivered pursuant to this Section (and, if any such change has occurredbecome effective, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(fv) prior to no later than 60 days after the commencement beginning of each fiscal year Fiscal Year commencing with the Fiscal Year ending December 31, 2017, a forecast of the Borrowerfollowing for each Fiscal Quarter of such Fiscal Year: (A) estimates of operating income, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations depreciation, Consolidated EBITDA, Consolidated Interest Expense, Consolidated Cash Interest Expense, operating cash flow, Capital Expenditures and cash flow as balances, (B) estimates of the end Eligible Receivables and (C) estimates of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetEligible Inventory;
(gvi) promptly after the same become publicly available, copies of all periodic and other reports, material reports and proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may beSEC;
(hvii) on promptly upon the sixth Business Day effectiveness of each calendar monthany material amendment or modification of, a detailed report or any waiver of the Consolidated Backlog for such month, measured as rights of the close Borrower or any of business on its Subsidiaries under any document evidencing any Permitted Supply Chain Financing, written notice of such amendment, modification or waiver describing in reasonable detail the prior Business Daypurpose and substance thereof;
(viii) written notice of any change in the Borrower’s Senior Debt Ratings by either Xxxxx’x, Fitch or S&P; and
(iix) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiaryand its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request. Information required to be delivered pursuant to this Section 5.01(a) shall be deemed to have been delivered on the date on which the Borrower provides notice to the Administrative Agent that such information has been posted on the Borrower’s website on the Internet at the website address listed on the signature pages hereof, at xxxxx://xxx.xxx.xxx/cgi-bin/browse-xxxxx?CIK=x&owner=exclude&action=getcompany&Find=Search or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 5.01(a)(iv) and (ii) the Borrower shall deliver paper copies of the information referred to in Section 5.01(a)(i), Section 5.01(a)(ii) and Section 5.01(a)(vi) to the Administrative Agent for any Lender which requests such delivery.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower, its Holdings's audited consolidated and unaudited consolidating balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Deloitte & Touche LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Holdings and the Subsidiaries 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 Borrower, its unaudited Holdings's consolidated and consolidating balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower Holdings and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days 30 days after the end of each of the first two fiscal months of each fiscal quarter of the Borrower, its unaudited Holdings's consolidated balance sheet and related statements of operations operations, stockholders' equity and cash flows as of the end of and for such fiscal month 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, respects the consolidated financial condition and results of operations of the Borrower Holdings and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.13 and 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph 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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Alec Holdings Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and (for distribution to each Lender:
Lender):within ninety (a90) within 90 days after the end of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed one hundred twenty (120) days after the end of each fiscal year of the Borrower), its the audited consolidated balance sheet statement of assets and related statements liabilities, statement of operations, stockholders' equity and statement of changes in net assets, statement of cash flows and schedule of investments of the Borrower and its consolidated Subsidiaries as of the end of and for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on certified by KPMG LLP or other 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 together with an opinion of such audit) to the effect accounting firm that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as disclosed therein) applied;
; provided that the requirements set forth in this clause (a) may be fulfilled by providing to the Administrative Agent the report of the Borrower to the SEC on Form 10-K for the applicable fiscal year; (b) within 45 forty five (45) days after the end of each of the first three (3) fiscal quarters of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed seventy-five (75) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower), its unaudited the consolidated balance sheet statement of assets and related statements liabilities, statement of operations, stockholders' equity and statement of changes in net assets, statement of cash flows and schedule of investments of the Borrower and its consolidated Subsidiaries as of the end of and for such fiscal 129 Revolving Credit and Term Loan Agreement 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, statements of operations, statement of changes in net assets, statement of cash flows and schedule of investments, as of the end of) the corresponding period or periods of the previous fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as disclosed therein) applied, subject to normal year-end audit adjustments and adjustments, the absence of footnotes;
(c) within 10 Business Days after footnotes and as otherwise described therein; provided that the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month and the then elapsed portion of the fiscal year, setting requirements set forth in each case in comparative form this clause (b) may be fulfilled by providing to the figures for Administrative Agent the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly, in all material respects, the consolidated financial condition and results of operations report of the Borrower and to the Subsidiaries SEC on a consolidated basis in accordance with GAAP consistently applied, subject to normal yearForm 10-end audit adjustments and Q for the absence of footnotes;
applicable quarterly period; (dc) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) or (c) aboveof this Section 5.01, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether the Borrower has knowledge that a Default or Event of Default has occurred and is continuing with respect to the Borrower during the applicable period and, if a Default or Event of Default has occurredoccurred and is continuing with respect to the Borrower during the most recent period covered by such financial statements (or has occurred and is continuing from a prior period), 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 6.126.01, 6.136.02, 6.14 6.04 and 6.15 6.07 and (iii) stating whether any change in GAAP as applied by (or in the application thereof of GAAP by) the Borrower has occurred since the date of Amendment No. 2 Effective Date (but only if the Borrower's audited Borrower has not previously reported such change to the Administrative Agent and if such change has had a material effect on the financial statements referred or to in Section 3.04 the extent not previously disclosed on a Form 10-K or Form 10Q previously filed with the SEC), and, if any such change has occurred, specifying the effect (unless such effect has been previously reported), as determined by the Borrower, of such change on the financial statements accompanying such certificate;
; provided that the requirements set forth in this clause (ec)(iii) concurrently with any delivery of financial statements under paragraph (a) above, a certificate may be fulfilled by providing to the Administrative Agent the report 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 (which certificate may be limited Borrower to the extent required by accounting rules or guidelines);
SEC on Form 10-Q for the applicable quarterly period; (fd) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year as soon as available and in any event not later than twenty (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of 20) days after the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
each monthly accounting period (g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) ending on the sixth Business Day last day of each calendar month) of the Borrower and its Subsidiaries, a detailed report Borrowing Base Certificate as at the last day of such accounting period; (e) promptly but no later than five (5) Business Days after any Responsible Officer of the Consolidated Backlog for Borrower shall at any time have knowledge that there is a Borrowing Base Deficiency, a Borrowing Base Certificate as at the date such month, measured Responsible Officer of the Borrower has knowledge of such Borrowing Base Deficiency indicating the amount of the Borrowing Base Deficiency as at the date such Responsible Officer of the Borrower obtained knowledge of such deficiency and the amount of the Borrowing Base Deficiency as of the close date not earlier than one (1) Business Day prior to the date the Borrowing Base Certificate is delivered pursuant to this clause I; (f) promptly upon receipt thereof copies of business on all significant written reports submitted to management or the prior Business Day; andboard of directors of the Borrower by the Borrower’s independent public accountants in connection with each annual, interim or special audit or 130 Revolving Credit and Term Loan Agreement
(i) promptly following any request thereforthe Borrower and each Lender acknowledge that certain of the Lenders may be Public Lenders and, such if documents or notices required to be delivered pursuant to this Section 5.01 or otherwise are being distributed through DebtDomain or another relevant website or other information regarding platform (the operations“Platform”), business affairs and financial condition any document or notice that the Borrower has indicated contains Non-Public Information shall not be posted by the Administrative Agent on that portion of the Platform designated for such Public Lenders. The Borrower agrees to clearly designate all information provided to the Administrative Agent by or on behalf of the Borrower or any Subsidiaryof its Subsidiaries which is suitable to make available to Public Lenders. If the Borrower has not indicated whether a document or notice delivered pursuant to this Section 5.01 contains Non-Public Information, or compliance with the terms of any Loan Document, as the Administrative Agent reserves the right to post such document or any Lender may reasonably requestnotice solely on that portion of the Platform designated for Lenders who wish to receive material Non-Public Information with respect to the Borrower, its Subsidiaries and their Securities (as such term is defined in Section 5.13 of this Agreement); and (j) notwithstanding anything to the contrary herein, the requirements to deliver documents set forth in Sections 5.01(a), (b) and (g) will be fulfilled by filing by the Borrower of the applicable documents for public availability on the SEC’s Electronic Data Gathering and Retrieval system.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Nuveen Churchill Direct Lending Corp.)
Financial Statements and Other Information. (a) The Borrower will furnish the following to the Administrative Agent and (for delivery to each Lender:):
(ai) as soon as available and in any event within 90 days after the end of each fiscal year of Fiscal Year commencing with the BorrowerFiscal Year ending December 31, 2018, its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of such Fiscal Year and the related statements of income and cash flows for such yearFiscal Year, setting forth in each case in comparative form the figures for the previous fiscal yearFiscal Year, all reported on by KPMG LLP PricewaterhouseCoopers LLC or other independent another “registered public accountants accounting firm” as defined in Section 2 of recognized national standing the Sxxxxxxx-Xxxxx Act of 2002 (without a "“going concern" ” or like qualification or exception and without any qualification or exception as to the scope of such auditaudit except as permitted by the Exchange Act and the regulations promulgated thereunder) to the effect that such consolidated financial statements present fairly, as presenting fairly in all material respectsrespects the financial position, the consolidated financial condition and results of operations and cash flows of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP;
(bii) as soon as available and in any event within 45 days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal year of the BorrowerFiscal Year, its unaudited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of such Fiscal Quarter and the related statement of income for such fiscal quarter Fiscal Quarter and statements of income and cash flows for the then elapsed portion of the fiscal yearsuch 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 yearFiscal Year, all certified by one of its a Financial Officers Officer as presenting fairly in (x) reflecting all material respects the consolidated financial condition adjustments (which adjustments are normal and results of operations recurring unless otherwise disclosed) necessary for a fair presentation of the Borrower results for the period covered and the Subsidiaries on a consolidated basis (y) having been prepared in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence applicable rules of footnotesthe SEC;
(ciii) as soon as available and in any event within 10 Business Days 30 days after the end of each of the first two months of each fiscal quarter of the Borrower, month (x) its unaudited consolidated balance sheet shipment and related statements of operations and cash flows as of the end of and average selling price data for such month and for the then elapsed portion of the fiscal year, setting forth Fiscal Year and (y) the additional monthly financial information described in each case in comparative form the figures for the corresponding period or periods of (or, and substantially in the case of the balance sheet, as of the end form of) the previous fiscal yearSchedule 5.01, all certified as to accuracy by one of its a Financial Officers as presenting fairly, in all material respects, the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesOfficer;
(div) concurrently with any each delivery of financial statements under paragraph (a), (bclause (i) or (c) above(ii), a certificate of a Financial Officer of the Borrower (ix) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether a Default has occurred and is continuing and, if a Default has occurredoccurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iiy) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 the applicable provisions of Section 6.03 and (iiiz) stating whether identifying any change change(s) in GAAP or in the application thereof has occurred that have become effective since the date of of, and have had an effect on, the Borrower's ’s most recent audited financial statements referred to in Section 3.04 or delivered pursuant to this Section 3.04 (and, if any such change has occurredbecome effective, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(fv) prior to no later than 60 days after the commencement beginning of each fiscal year Fiscal Year commencing with the Fiscal Year ending December 31, 2018, a forecast of the Borrowerfollowing for each Fiscal Quarter of such Fiscal Year: (3) estimates of operating income, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations depreciation, Consolidated EBITDA, Consolidated Interest Expense, Consolidated Cash Interest Expense, operating cash flow, Capital Expenditures and cash flow as balances, (4) estimates of the end Eligible Receivables and (5) estimates of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetEligible Inventory;
(gvi) promptly after the same become publicly available, copies of all periodic and other reports, material reports and proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may beSEC;
(hvii) on promptly upon the sixth Business Day effectiveness of each calendar monthany material amendment or modification of, a detailed report or any waiver of the Consolidated Backlog for such month, measured as rights of the close Borrower or any of business on its Subsidiaries under any document evidencing any Permitted Supply Chain Financing, written notice of such amendment, modification or waiver describing in reasonable detail the prior Business Daypurpose and substance thereof;
(viii) written notice of any change in the Borrower’s Senior Debt Ratings by either Mxxxx’x, Fitch or S&P; and
(iix) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiaryand its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request; including information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the US PATRIOT Act or other applicable anti-money laundering laws. Information required to be delivered pursuant to this Section 5.01(a) shall be deemed to have been delivered on the date on which the Borrower provides notice to the Administrative Agent that such information has been posted on the Borrower’s website on the Internet at the website address listed on the signature pages hereof, at hxxxx://xxx.xxx.xxx/xxx-bin/browse-exxxx?CIK=x&owner=exclude&action=getcompany&Find=Search or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 5.01(a)(iv) and (ii) the Borrower shall deliver paper copies of the information referred to in Section 5.01(a)(i), Section 5.01(a)(ii) and Section 5.01(a)(vi) to the Administrative Agent for any Lender which requests such delivery.
Appears in 1 contract
Financial Statements and Other Information. The Borrower and its Subsidiaries will furnish to the Administrative Agent and Agent, on behalf of each Lender:
(a) within (i) on or before the date that is 90 days after the end of each fiscal year of the Lead Borrower, its commencing with the fiscal year of the Lead Borrower ended on or about December 31, 2021, the audited consolidated balance sheet and related audited consolidated statements of operationsoperations and comprehensive income, stockholders' shareholders’ equity and cash flows of the Lead Borrower and its Subsidiaries as of the end of and for such year, and related notes thereto, setting forth in each case case, in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP BDO, Deloitte or other independent public accountants of recognized national standing (without a "“going concern" ” or like qualification or exception and without any material qualification or exception as to the scope of such auditaudit (other than with respect to, or resulting from, (A) an upcoming maturity date of any indebtedness for borrowed money or (B) any actual or potential breach or inability to satisfy a financial covenant under any indebtedness for borrowed money)) to the effect that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial condition as of the end of and for such year and results of operations and cash flows of the Lead Borrower and the such Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedapplied and (ii) management’s discussion and analysis of the important operational and financial developments during such fiscal year;
(b) within 45 (i) on or before the date that is 30 days after the end of each of the first three fiscal quarters of each fiscal year of the Lead Borrower, its commencing with the first fiscal quarter of the Lead Borrower ended after the Effective Date, the unaudited consolidated balance sheet and related unaudited consolidated statements of operationsoperations and comprehensive income, stockholders' shareholders’ equity and cash flows of the Lead Borrower 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 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 a Financial Officers Officer as presenting fairly in all material respects the consolidated 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 Lead Borrower and the its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesfootnotes and (ii) management’s discussion and analysis of the important operational and financial developments during such fiscal quarter;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes[reserved];
(d) concurrently with not later than ten (10) Business Days of any delivery of financial statements under paragraph (a) above, a reasonably detailed annual budget for the Borrower and its Subsidiaries on a consolidated basis, in a form customarily prepared by the Lead Borrower or otherwise as may be reasonably agreed between the Lead Borrower and the Administrative Agent (it being agreed that such annual budget shall not be provided to Public Lenders), ;
(be) not later than five (5) days after any delivery of financial statements under paragraph (a) or (cb) above, a certificate (a “Compliance Certificate”) of a Financial Officer in the form of the Borrower Exhibit E hereof (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether a Default has occurred then exists and, if a Default has occurreddoes then exist, specifying the details thereof and any action taken or proposed to be taken with respect thereto, thereto and (ii) setting forth reasonably detailed calculations (A) to the extent the Financial Maintenance Covenants are then required to be tested, demonstrating compliance with Sections 6.12the Financial Maintenance Covenants, 6.13, 6.14 and 6.15 and (iiiB) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 case of financial statements delivered under paragraph (a) above, a certificate beginning with the financial statements for the fiscal year of the accounting firm that reported Lead Borrower ending on or about December 31, 2021, of Excess Cash Flow for such financial statements stating whether they obtained knowledge during the course of their examination of such financial statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines)fiscal year;
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget[reserved];
(g) [reserved];
(h) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and registration statements (other materials 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 Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, SEC or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Document, as the Administrative Agent on its own behalf or on behalf of any Lender may reasonably requestrequest in writing. Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 may be satisfied with respect to financial information of the 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 within the applicable time periods required by applicable law and regulations; provided that such materials are accompanied by a report and opinion of BDO, Deloitte 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 (other than with respect to, or resulting solely from, (i) an upcoming maturity date of any indebtedness for borrowed money or (ii) any actual or potential breach or inability to satisfy a financial covenant under any indebtedness for borrowed money). Documents required to be delivered pursuant to Section 5.01(a), (b) or (h) (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 Lead Borrower posts such documents, or provides a link thereto on the Lead 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 documents are posted on the Lead 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). 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. 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) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent (or any Lender (or their respective representatives or contractors)) is prohibited by applicable law, (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product or (iv) 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 5.01) to any third party. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the 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 Non-Public Information and who may be engaged in investment and other market-related activities with respect to the Borrower’s or its Affiliates’ 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 Bookrunners, and the Lenders to treat such Borrower Materials as not containing any Material Non-Public Information (although it may be sensitive and proprietary) (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 through a portion of the Platform designated “Public Side Information”; and (z) the Administrative Agent and the Lead 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 Platform not designated “Public Side Information”; provided that the Borrower’s failure to comply with this sentence shall not constitute a Default or an Event of Default under this Agreement or the Loan Documents. Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials as “PUBLIC”. Each Loan Party hereby acknowledges and agrees that, unless the Borrower notifies the Administrative Agent in advance, all financial statements and certificates furnished pursuant to Sections 5.01(a), (b) and (e) above are hereby deemed to be suitable for distribution, and to be made available, to all Lenders and may be treated by the Administrative Agent and the Lenders as not containing any Material Non-Public Information.
Appears in 1 contract
Samples: First Lien Credit Agreement (Franchise Group, Inc.)
Financial Statements and Other Information. The Borrower For so long as the Bonds are Outstanding, the Issuer will furnish to the Administrative Agent Trustee and each Lenderthe Rating Agencies:
(a) within 90 105 days after the end of each fiscal year of the BorrowerIssuer, its (i) the audited consolidated balance sheet and related statements of operations, stockholdersmembers' equity and cash flows of the Issuer and its Subsidiaries as of the end of and for such year and (ii) the audited consolidated balance sheet and related statements of operations, members' equity and cash flows of the Issuer and the Guarantors (excluding the financial condition and results of operations of the Issuer and the Unrestricted 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 KPMG PricewaterhouseCoopers LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Issuer and the its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerIssuer, its (i) the unaudited consolidated balance sheet and related statements of operations, stockholdersmembers' equity and cash flows of the Issuer and its Subsidiaries as of the end of and for such fiscal quarter and the then then-elapsed portion of the fiscal yearyear and (ii) the unaudited consolidated balance sheet and related statements of operations, members' equity and cash flows of the Issuer and the Guarantors (excluding the financial condition and results of operations of the Issuer and the Unrestricted Subsidiaries), 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 corresponding period or periods of the previous fiscal year, all certified by one an Authorized Representative of its Financial Officers the Issuer as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower Issuer and the its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) or (c) aboveof this Section, a certificate of a Financial Officer of the Borrower an Officer's Certificate (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether to the best knowledge of the signer thereof 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 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's most recent prior audited financial statements referred delivered pursuant to in Section 3.04 6.1(a) or delivered to Holders on or prior to the Closing Date, as applicable, and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;; NRG Northeast Generating Indenture ---------------------------------- 54
(ed) concurrently with any delivery of financial statements under paragraph clause (a) aboveof this Section, 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 Default Defaults under clause (b) (B) (y) of the definition of "Permitted Investments" or clauses (b) or (c) of Section 6.15 (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(ge) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower Issuer or any Subsidiary of the Guarantors with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissioncommission, or with any national securities exchange, or distributed by the Borrower Issuer to its public stockholders members generally, as the case may be;
(hf) on the sixth Business Day of each calendar month, a detailed report promptly after receiving notice of the Consolidated Backlog for such monthsame, measured as copies of any information with respect to any material litigation or material governmental or environmental proceedings against the close of business on Issuer or the prior Business DayGuarantors; and
(ig) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower Issuer or any Subsidiaryof the Guarantors, or compliance with the terms of any Loan Documentthis Indenture and the other Transaction Documents, as the Administrative Agent Trustee or any Lender Majority Holders may reasonably request.
Appears in 1 contract
Samples: Indenture (Somerset Power LLC)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:(which shall promptly furnish to the Lenders):
(a) within 90 75 days after the end of each fiscal year year, the audited consolidated statements of operations, changes in stockholders’ equity and cash flows of the BorrowerBorrower and its Subsidiaries for such fiscal year, its and the related audited consolidated balance sheet for the Borrower and related statements of operations, stockholders' equity and cash flows its Subsidiaries as of the end of and for such fiscal year, setting forth in each case in comparative form the corresponding figures for the previous fiscal year, all reported on by KPMG LLP LLP, or other 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 audited consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its 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 year:
(i) the unaudited interim consolidated statements of operations of the Borrower, Borrower and its unaudited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and Subsidiaries for such fiscal quarter (the “current fiscal quarter”) and for the then elapsed portion of the fiscal year,
(ii) the unaudited interim consolidated statements of changes in stockholders’ equity and cash flows of the Borrower and its Subsidiaries for the then elapsed portion of the fiscal year, and
(iii) the unaudited interim consolidated balance sheet for the Borrower and its Subsidiaries as at the end of such fiscal quarter, 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 a Financial Officer of its Financial Officers the Borrower as presenting fairly fairly, in all material respects respects, the consolidated financial condition and results of operations of the Borrower and the its Subsidiaries on a consolidated basis in each case in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotesfootnotes in the case of all interim balance sheets of the Borrower;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower Borrower:
(i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.126.01(o), 6.136.01(p), 6.14 6.02(k) and 6.15 and 6.05; and
(iii) stating whether any change in GAAP or in the application thereof has occurred since the later of the date of the Borrower's audited financial statements as at December 31, 2009 referred to in Section 3.04 and the date of the last certificate delivered pursuant to this clause (c) 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gd) promptly after the same become publicly available, copies of furnish all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary Obligor with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, Commission or distributed by such Obligor to the Borrower to holders of its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Daysecurities; and
(ie) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any SubsidiaryObligor, or compliance with the terms of any this Agreement and other Loan DocumentDocuments, as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request. Documents required to be delivered pursuant to this Section 5.01 (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 have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s website; or (ii) on which such documents are posted on the Obligors’ behalf on IntraLinks 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). Notwithstanding anything contained herein, in every instance (i) the Borrower shall be required to provide paper copies of the certificates required by Section 5.01(c) to the Administrative Agent and (ii) the Borrower shall notify any Lender when documents required to be delivered pursuant to this Section 5.01 have been delivered electronically to the extent that such Lender has requested the Borrower to be notified. Except for such 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.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will Borrowers shall furnish to the Administrative Agent and Agent, on behalf of each Lender:
(a) within 90 120 days after the end of the fiscal year of the Company ending December 31, 2022, and within 120 days after the end of each fiscal year of the BorrowerCompany thereafter, its audited consolidated balance sheet and related consolidated statements of operationsincome, comprehensive income, stockholders' ’ equity and cash flows as of the end of and for such fiscal year, setting forth in each case in comparative form the figures for the previous prior fiscal year, all reported on certified by KPMG LLP or other independent public accountants a Financial Officer of recognized national standing (without a "going concern" or like qualification or exception and without any qualification or exception the Company as to the scope of such audit) to the effect that such consolidated financial statements present presenting fairly, in all material respects, the consolidated financial condition and position, results of operations and cash flows of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis as of the end of and for such fiscal year, and accompanied by a narrative report containing management’s discussion and analysis of the financial position and financial performance for such fiscal year in accordance with GAAP consistently appliedreasonable form and detail;
(b) within 45 days (or, solely with respect to the fiscal quarter ending December 31, 2022, 75 days) after the end of each of the first three fiscal quarters quarter of each fiscal year of the BorrowerCompany, commencing with the fiscal quarter ending December 31, 2022, its unaudited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and such fiscal quarter, the related consolidated statements of income for such fiscal quarter and the then elapsed portion of the fiscal year and the related statements of cash flows for the then elapsed portion of the fiscal year, setting forth in each case setting forth 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 prior fiscal year, and a comparison to the consolidated budget for such fiscal year, all certified by one a Financial Officer of its Financial Officers the Company as presenting fairly fairly, in all material respects respects, the consolidated financial condition and position, results of operations and cash flows of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedas of the end of and for such fiscal quarter and such portion of the fiscal year, subject to normal year-end audit adjustments and the absence of certain footnotes, and accompanied by a narrative report containing management’s discussion and analysis of the financial position and financial performance for such fiscal quarter in reasonable form and detail;
(c) within 10 Business Days 30 days after the end of each of the first two months fiscal month of each fiscal quarter of the BorrowerCompany (or 45 days in the case of the third month of a fiscal quarter), its unaudited consolidated balance sheet and related consolidated statements of operations income, stockholders’ equity and cash flows as of the end of and for such fiscal month 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 a Financial Officer of its Financial Officers the Company as presenting fairly, in all material respects, the consolidated financial condition and position, results of operations and cash flows of the Borrower Company and its consolidated Subsidiaries as of the Subsidiaries on a consolidated basis end of and for such fiscal month and such portion of the fiscal year in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any each delivery of financial statements under paragraph (a), (b) or (c) above, the Variance Report a certificate of completed Compliance Certificate signed by a Financial Officer of the Borrower each Borrower, (i) certifying, to such Financial Officer's knowledge after due inquiry, 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, thereto and (ii) setting forth reasonably detailed calculations demonstrating compliance with certifying that all notices required to be provided under Sections 6.12, 6.13, 6.14 5.03 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate5.04 have been provided;
(e) concurrently with any delivery of financial statements under paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Restructuring Support Agreement (Starry Group Holdings, Inc.)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) As soon as available, but in any event within 90 120 days after the end of each fiscal year year, (i) a copy of the Borrower's Annual Report on Form 10-K in respect of such fiscal year required to be filed by the Borrower with the SEC, its together with the financial statements attached thereto, and (ii) the Borrower's audited consolidated balance sheet and related consolidated statements of operationsincome, stockholders' stockholder's equity and cash flows as of the end of and for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other independent public accountants of recognized national standing the Accountants (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, fairly in all material respects, respects the consolidated financial condition conditions and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedapplied during such fiscal year;
(b) As soon as available, but in any event within 45 60 days after the end of each of the first three fiscal quarters of each fiscal year year, (i) a copy of the Borrower's Quarterly Report on Form 10-Q in respect of such fiscal quarter required to be filed by the Borrower with the SEC, its together with the financial statements attached thereto, and (ii) the Borrower's unaudited consolidated balance sheet and related consolidated statements of operationsincome, stockholders' stockholder's 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 a duly authorized Financial Officers Officer as presenting fairly in all material respects the consolidated financial condition conditions and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-year end audit adjustments and the absence of footnotes;
(c) within 10 Business Days Within 60 days after the end of each of the first two months of each three fiscal quarter of the Borrower, its unaudited consolidated balance sheet quarters and related statements of operations and cash flows as of within 120 days after the end of and for the last fiscal quarter, a Compliance Certificate, signed by a Financial Officer (or such month and other officer as shall be acceptable to the then elapsed portion of Administrative Agent) as to 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 sheetBorrower's compliance, as of the end of) the previous such fiscal yearquarter ending date, all certified by one of its Financial Officers with Section 7.3, and as presenting fairly, in all material respects, the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
any Default as of such fiscal quarter ending date and the date of such certificate (d) concurrently with any delivery of financial statements under paragraph (a), (b) or (c) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, as to whether a Default has occurred and, if a Default has occurredexisted or exists, 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 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelinesnature thereof);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(id) 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 any the Loan DocumentDocuments, as the Administrative Agent or any Lender Credit Party may reasonably request.
Appears in 1 contract
Samples: Term Loan Agreement (Cleco Corp)
Financial Statements and Other Information. The ------------------------------------------ Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower, its audited consolidated and consolidating balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the Subsidiaries 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 Borrower, its unaudited consolidated and consolidating balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph (a), (b) or (c) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish Integra shall deliver to the Administrative Agent Purchasers, in form and each Lendersubstance satisfactory to the Purchasers:
(a) within 90 as soon as available, but not later than ninety (90) days after the end of each fiscal year of Integra, a copy of the Borrower, its audited consolidated balance sheet of Integra and related statements of operations, stockholders' equity and cash flows its Subsidiaries as of the end of such year and the related statements of operations and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on in reasonable detail and accompanied by KPMG LLP or other a management summary and analysis of the operations of Integra and its Subsidiaries for such fiscal year and by the opinion of a nationally recognized independent certified public accountants of recognized national standing (accounting firm which report shall state 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, fairly the consolidated financial condition as of such date and results of operations and cash flows for the periods indicated in conformity with GAAP applied on a consistent basis; provided, however, that the delivery to each of the Borrower and Purchasers of a copy of Integra's Annual Report on Form 10-K for each fiscal year shall satisfy the Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedrequirements of this Section 7.3(a);
(b) within 45 commencing with the fiscal period ending on March 31, 2000, as soon as available, but in any event not later than forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of year, the Borrower, its unaudited consolidated balance sheet of Integra and its Subsidiaries, and the related statements of operations, stockholders' equity operations and cash flows as of the end of for such quarter and for such fiscal quarter and the then elapsed portion period commencing on the first day of the fiscal year, setting forth in each case in comparative form year and ending on the figures for the corresponding period or periods last day of (or, in the case of the balance sheet, as of the end of) the previous fiscal yearsuch quarter, all certified by one an appropriate officer of its Financial Officers Integra as presenting fairly in all material respects the consolidated financial condition as of such date and results of operations of and cash flows for the Borrower and the Subsidiaries periods indicated in conformity with GAAP applied on a consolidated basis in accordance with GAAP consistently appliedconsistent basis, subject to normal year-end audit adjustments and the absence of footnotesfootnotes required by GAAP; provided, however, that the delivery to each of the Purchasers of a copy of Integra's Quarterly Report on Form 10-Q for each fiscal quarter shall satisfy the requirements of this Section 7.3(b);
(c) within 10 Business Days after the end of each at any time when it is not subject to Section 13 or 15(d) of the first two months of each fiscal quarter Exchange Act, upon request, to the Purchasers, information of the Borrower, its unaudited consolidated balance sheet and related statements type that would satisfy the requirement of operations and cash flows as subsection (d)(4)(i) of Rule 144A (or any similar successor provision) under the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;Securities Act; and
(d) concurrently with any delivery of financial statements under paragraph except as otherwise provided in Sections 7.3(a) and (ab), (b) or (c) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) promptly after the same become publicly availableare filed, copies of all periodic registration statements, proxy statements, reports and other reports, proxy statements and other materials documents required to be filed by the Borrower or any Subsidiary with Integra under the Securities Act or the Exchange Act, and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably requestamendments thereto.
Appears in 1 contract
Samples: Series C Convertible Preferred Stock and Warrant Purchase Agreement (Soros Fund Management LLC)
Financial Statements and Other Information. The Borrower Company will furnish to the Administrative Agent and each LenderWanxiang:
(a1) within 90 ninety (90) days after the end of each fiscal year of the BorrowerCompany, its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, and the Company will use its commercially reasonable efforts to cause such financial statements to be accompanied by any management letter prepared by said accountants;
(b2) within 45 forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerCompany, its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c3) within 10 Business Days twenty (20) days after the end of each fiscal month of the first two months of each fiscal quarter of the BorrowerCompany, its unaudited consolidated balance sheet and related statements of operations operations, stockholders’ equity and cash flows as of the end of and for such fiscal month 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d4) concurrently with any delivery of financial statements under paragraph paragraphs (a1), (b2) or (c3) above, a certificate of a Financial Officer of the Borrower Company in substantially the form of Exhibit II (i) certifying, in the case of the financial statements delivered under paragraphs (2) or (3), as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to such Financial Officer's knowledge after due inquirynormal year-end audit adjustments and the absence of footnotes, (ii) 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, (iiiii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate15(b)(xii);
(e5) concurrently with any delivery of financial statements under paragraph (a1) 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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f6) as soon as available, but in any event no later than the end of, and no earlier than sixty (60) days prior to the commencement end of each fiscal year of the BorrowerCompany, a detailed consolidated budget for such fiscal year copy of the plan and forecast (including a projected consolidated balance sheet sheet, income statement and related statements of projected operations and cash funds flow as statement) of the end Company for each month of and for such the upcoming fiscal year and setting forth any material assumptions used for purposes of preparing such budget(the “Projections”) and, promptly when available, any significant revisions of such budgetin form reasonably satisfactory to Wanxiang;
(g7) as soon as possible and in any event within ten (10) days of filing thereof, copies of all tax returns filed by any Company Party with the U.S. Internal Revenue Service after the Issuance Date;
(8) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower Company or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower Company to its public stockholders shareholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i9) promptly following any request therefortherefor by Wanxiang, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any Subsidiary, or compliance with the terms of any Loan Documentthis Note, as the Administrative Agent or any Lender Wanxiang may reasonably request, unless the provision of such information could reasonably be expected to result in a violation of any law. Documents required to be delivered pursuant to paragraphs (1), (2) and (8) of this Section 15(a)(i) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System; provided that the Company shall notify (which may be by facsimile or electronic mail) Wanxiang of the posting of any such documents and provide to Wanxiang by electronic mail electronic versions (i.e., soft copies) of such documents, if requested.
Appears in 1 contract
Samples: Securities Purchase Agreement (Wanxiang Group Corp)
Financial Statements and Other Information. The Borrower Company will furnish to the Administrative Agent and each LenderLender through the Administrative Agent:
(a) within 90 ninety (90) days after the end of each fiscal year Fiscal Year of the BorrowerCompany (or, if earlier, by the date that the Annual Report on Form 10-K of the Company for such Fiscal Year would be required to be filed under the rules and regulations of the SEC, giving effect to any extension available thereunder for the filing of such form), its audited consolidated balance sheet and related statements of operationsincome, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal yearFiscal Year, all reported on by KPMG Deloitte & Touche, LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 sixty (60) days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal year Fiscal Year of the BorrowerCompany (or, if earlier, by the date that the Quarterly Report on Form 10-Q of the Company for such Fiscal Quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any extension available thereunder for the filing of such form), its unaudited consolidated balance sheet and related statements of operationsincome, stockholders' ’ equity and cash flows as of the end of and for such fiscal quarter Fiscal Quarter and the then elapsed portion of the fiscal yearFiscal 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 yearFiscal Year, all certified by one of its Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) or (c) above, as applicable, a certificate of a Financial Officer of the Borrower Company (i) certifying, to such Financial Officer's stating that he or she has obtained no knowledge after due inquiry, as to whether that a Default has occurred (except as set forth in such certificate) and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) (x) setting forth reasonably detailed calculations demonstrating the calculation of the Net Leverage Ratio at the end of the relevant Fiscal Quarter or Fiscal Year and (y) demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 Section 6.07 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gd) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower Company or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(he) on promptly following any request therefor, provide information and documentation reasonably requested by the sixth Business Day Administrative Agent or any Lender (acting through the Administrative Agent) for purposes of each calendar monthcompliance with applicable “know your customer” and anti-money-laundering rules and regulations, a detailed report of including, without limitation, the Consolidated Backlog for such month, measured as of PATRIOT Act and the close of business on the prior Business DayBeneficial Ownership Regulation; and
(if) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any Subsidiary, or compliance with the terms of any Loan Document, Subsidiary as the Administrative Agent or any Lender may reasonably requestrequest (other than materials protected by the attorney-client privilege and materials which the Company or such Subsidiary, as applicable, may not disclose without violation of a confidentiality obligation binding upon it). Documents required to be delivered pursuant to clauses (a), (b) and (d) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and (for distribution to each Lender:):
(a) within 90 ninety (90) days after the end of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed one hundred twenty (120) days after the end of each fiscal year of the Borrower), its the audited consolidated balance sheet and related statements sheet, statement of operations, stockholders' equity and statement of changes in net assets, statement of cash flows and schedule of investments of the Borrower and its consolidated Subsidiaries as of the end of and for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as disclosed therein) applied; provided that the requirements set forth in this clause (a) may be fulfilled by providing to the Administrative Agent the report of the Borrower to the SEC on Form 10-K for the applicable fiscal year;
(b) within 45 forty five (45) days after the end of each of the first three fiscal quarter of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed seventy-five (75) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower), its unaudited the consolidated balance sheet and related statements sheet, statement of operations, stockholders' equity and statement of changes in net assets, statement of cash flows and schedule of investments of the Borrower and its consolidated 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, statements of operations, statement of changes in net assets, statement of cash flows and schedule of investments, as of the end of) the corresponding period or periods of the previous fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as disclosed therein) applied, subject to normal year-end audit adjustments and adjustments, the absence of footnotes;footnotes and as otherwise described therein; provided that the requirements set forth in this clause (b) may be fulfilled by providing to the Administrative Agent the report of the Borrower to the SEC on Form 10-Q for the applicable quarterly period; 101 Revolving Credit Agreement
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) or (c) aboveof this Section 5.01, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether the Borrower has knowledge that a Default has occurred and is continuing with respect to the Borrower during the applicable period and, if a Default has occurredoccurred and is continuing with respect to the Borrower during the most recent period covered by such financial statements (or has occurred and is continuing from a prior period), 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 6.126.01(b), 6.136.01(f), 6.14 6.01(h), 6.01(l), 6.01(m), 6.01(n), 6.01(o), 6.02(d), 6.02(g), 6.02(h), 6.02(i), 6.04(d), 6.04(e), 6.04(f) and 6.15 6.07 and (iii) stating whether any change in GAAP as applied by (or in the application thereof of GAAP by) the Borrower has occurred since the date of Effective Date (but only if the Borrower's audited Borrower has not previously reported such change to the Administrative Agent and if such change has had a material effect on the financial statements referred to in Section 3.04 statements), and, if any such change has occurred, specifying the effect (unless such effect has been previously reported), as determined by the Borrower, of such change on the financial statements accompanying such certificate; provided that the requirements set forth in this clause (c)(iii) may be fulfilled by providing to the Administrative Agent the report of the Borrower to the SEC on Form 10-Q for the applicable quarterly period;
(d) as soon as available and in any event not later than twenty (20) days after the end of each monthly accounting period (ending on the last day of each calendar month) of the Borrower and its Subsidiaries, a Borrowing Base Certificate as at the last day of such accounting period and (ii) if during such monthly accounting period the Borrower has declared or made any Restricted Payment pursuant to Section 6.05(c), a certificate of a Financial Officer of the Borrower describing each such Restricted Payment and certifying that the conditions set forth in Section 6.05(c) were satisfied on the date of each such Restricted Payment;
(e) concurrently with promptly but no later than five (5) Business Days after any delivery Responsible Officer of financial statements under paragraph (a) abovethe Borrower shall at any time have knowledge that there is a Borrowing Base Deficiency, a certificate Borrowing Base Certificate as at the date such Responsible Officer of the accounting firm that reported on Borrower has knowledge of such financial statements stating whether they Borrowing Base Deficiency indicating the amount of the Borrowing Base Deficiency as at the date such Responsible Officer of the Borrower obtained knowledge during the course of their examination of such financial statements deficiency and the amount of any Default the Borrowing Base Deficiency as of the date not earlier than one (which certificate may be limited 1) Business Day prior to the extent required by accounting rules or guidelinesdate the Borrowing Base Certificate is delivered pursuant to this clause (e);
(f) prior promptly upon receipt thereof copies of all significant written reports submitted to management or the board of trustees of the Borrower by the Borrower’s independent public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems of the Borrower or any of its Subsidiaries delivered by such accountants to the commencement management or board of each fiscal year trustees of the Borrower (other than the periodic reports that the Borrower’s independent auditors provide in the ordinary course to the audit committee of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements ’s board of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;trustees); 102 Revolving Credit Agreement
(g) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials sent to all stockholders filed by the Borrower or any of the Subsidiary Guarantors with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiaryof its Subsidiaries, or compliance with the terms of any this Agreement and the other Loan DocumentDocuments, as the Administrative Agent or any Lender may reasonably request, including such documents and information requested by the Administrative Agent or any Lender that are reasonably required in order to comply with “know-your-customer” and other anti-terrorism, anti-money laundering and similar rules and regulations and related policies and procedures;
(i) the Borrower and each Lender acknowledge that certain of the Lenders may be Public Lenders and, if documents or notices required to be delivered pursuant to this Section 5.01 or otherwise are being distributed through DebtDomain or another relevant website or other information platform (the “Platform”), any document or notice that the Borrower has indicated contains Non-Public Information shall not be posted by the Administrative Agent on that portion of the Platform designated for such Public Lenders. The Borrower agrees to clearly designate all information provided to the Administrative Agent by or on behalf of the Borrower or any of its Subsidiaries which is suitable to make available to Public Lenders. If the Borrower has not indicated whether a document or notice delivered pursuant to this Section 5.01 contains Non-Public Information, the Administrative Agent reserves the right to post such document or notice solely on that portion of the Platform designated for Lenders who wish to receive material Non-Public Information with respect to the Borrower, its Subsidiaries and their Securities (as such term is defined in Section 5.13 of this Agreement); and
(j) notwithstanding anything to the contrary herein, the requirements to deliver documents set forth in Sections 5.01(a), (b) and (g) will be fulfilled by filing by the Borrower of the applicable documents for public availability on the SEC’s Electronic Data Gathering and Retrieval system; provided, that the Borrower shall notify the Administrative Agent (by telecopier or e-mail) of the posting of any such documents.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (AB Private Lending Fund)
Financial Statements and Other Information. (a) The Borrower will furnish the following to the Administrative Agent and (for delivery to each Lender:):
(ai) as soon as available and in any event within 90 days after the end of each fiscal year of Fiscal Year commencing with the BorrowerFiscal Year ending December 31, 2022, its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of such Fiscal Year and the related statements of income and cash flows for such yearFiscal Year, setting forth in each case in comparative form the figures for the previous fiscal yearFiscal Year, all reported on by KPMG LLP PricewaterhouseCoopers LLC or other independent another “registered public accountants accounting firm” as defined in Section 2 of recognized national standing the Sxxxxxxx-Xxxxx Act of 2002 (without a "“going concern" ” or like qualification or exception and without any qualification or exception as to the scope of such auditaudit except as permitted by the Exchange Act and the regulations promulgated thereunder) to the effect that such consolidated financial statements present fairly, as presenting fairly in all material respectsrespects the financial position, the consolidated financial condition and results of operations and cash flows of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP;
(bii) as soon as available and in any event within 45 days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal year of the BorrowerFiscal Year, its unaudited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of such Fiscal Quarter and the related statement of income for such fiscal quarter Fiscal Quarter and statements of income and cash flows for the then elapsed portion of the fiscal yearsuch 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 yearFiscal Year, all certified by one of its a Financial Officers Officer as presenting fairly in (x) reflecting all material respects the consolidated financial condition adjustments (which adjustments are normal and results of operations recurring unless otherwise disclosed) necessary for a fair presentation of the Borrower results for the period covered and the Subsidiaries on a consolidated basis (y) having been prepared in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence applicable rules of footnotesthe SEC;
(ciii) as soon as available and in any event within 10 Business Days 30 days after the end of each of the first two months of each fiscal quarter of the Borrower, month (x) its unaudited consolidated balance sheet shipment and related statements of operations and cash flows as of the end of and average selling price data for such month and for the then elapsed portion of the fiscal year, setting forth Fiscal Year and (y) the additional monthly financial information described in each case in comparative form the figures for the corresponding period or periods of (or, and substantially in the case of the balance sheet, as of the end form of) the previous fiscal yearSchedule 5.01, all certified as to accuracy by one of its a Financial Officers as presenting fairly, in all material respects, the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesOfficer;
(div) concurrently with any each delivery of financial statements under paragraph (a), (bclause (i) or (c) above(ii), a certificate of a Financial Officer of the Borrower (ix) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether a Default has occurred and is continuing and, if a Default has occurredoccurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iiy) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 the applicable provisions of Section 6.03 and (iiiz) stating whether identifying any change change(s) in GAAP or in the application thereof has occurred that have become effective since the date of of, and have had an effect on, the Borrower's ’s most recent audited financial statements referred to in Section 3.04 or delivered pursuant to this Section 3.04 (and, if any such change has occurredbecome effective, specifying the effect of such change on the financial statements accompanying such certificate;
(e) concurrently with any delivery of financial statements under paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(fv) prior to no later than 60 days after the commencement beginning of each fiscal year Fiscal Year commencing with the Fiscal Year ending December 31, 2022, a forecast of the Borrowerfollowing for each Fiscal Quarter of such Fiscal Year: (1) estimates of operating income, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations depreciation, Consolidated EBITDA, Consolidated Interest Expense, Consolidated Cash Interest Expense, operating cash flow, Capital Expenditures and cash flow as balances, (2) estimates of the end Eligible Receivables and (3) estimates of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetEligible Inventory;
(gvi) promptly after the same become publicly available, copies of all periodic and other reports, material reports and proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may beSEC;
(hvii) on promptly upon the sixth Business Day effectiveness of each calendar monthany material amendment or modification of, a detailed report or any waiver of the Consolidated Backlog for such month, measured as rights of the close Borrower or any of business on its Subsidiaries under any document evidencing any Permitted Supply Chain Financing, written notice of such amendment, modification or waiver describing in reasonable detail the prior Business Daypurpose and substance thereof;
(viii) written notice of any change in the Borrower’s Senior Debt Ratings by either Mxxxx’x, Fitch or S&P; and
(iix) promptly following any request therefor, therefor such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiaryand its Subsidiaries, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request; including information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the US PATRIOT Act, the Beneficial Ownership Regulation or other applicable anti-money laundering laws. Information required to be delivered pursuant to this Section 5.01(a) shall be deemed to have been delivered on the date on which the Borrower provides notice to the Administrative Agent that such information has been posted on the Borrower’s website on the Internet at the website address listed on the signature pages hereof, at hxxxx://xxx.xxx.xxx/xxx-bin/browse-exxxx?CIK=x&owner=exclude&action=getcompany&Find=Search or at another website identified in such notice and accessible by the Lenders without charge; provided that (i) such notice may be included in a certificate delivered pursuant to Section 5.01(a)(iv) and (ii) the Borrower shall deliver paper copies of the information referred to in Section 5.01(a)(i), Section 5.01(a)(ii) and Section 5.01(a)(vi) to the Administrative Agent for any Lender which requests such delivery.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the BorrowerBorrower (or, if later, by the date the Annual Report on Form 10-K of the Borrower for such fiscal year would have been required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for the filing of such form), its audited consolidated balance sheet and related consolidated statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case case, in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the 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 BorrowerBorrower (or, if later, by the date the Quarterly Report on Form 10-Q of the Borrower for such fiscal quarter would have been required to be filed under the rules and regulations of the SEC, giving effect to any automatic extension available thereunder for filing of such form), its unaudited consolidated balance sheet and related statements consolidated statement of operations, stockholders' equity and cash flows operations as of the end of and for such fiscal quarter and related consolidated statements of operations and cash flows for the then elapsed portion of the fiscal year, setting forth in each case case, in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesfootnotes (it being understood that, with respect to any such consolidated financial statements, the filing with the SEC of a Section 302 certification and a Section 906 certification by a Financial Officer of the Borrower in conjunction with any Quarterly Report on Form 10-Q of the Borrower that contains such consolidated financial statements shall be deemed to satisfy the requirement under this clause (b) to provide the specified certification by a Financial Officer of the Borrower);
(c) within 10 five Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower Borrower, which shall be in the form of Exhibit E, (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether a any Default has occurred andand is continuing, if a Default has occurred, and 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 6.12, 6.12 and 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred and (iv) certifying that all notices required to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificatebe provided under Sections 5.03 and 5.11 have been provided;
(ed) concurrently with (i) within five Business Days after any delivery of financial statements under paragraph clause (a) or (b) above, the supplements to the schedule referred to in Section 4.04(a) of the Collateral Agreement and (ii) within five Business Days after any delivery of financial statements under clause (a) above, a certificate the supplements to the schedule referred to in Section 4.04(b) 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 (which certificate may be limited to the extent required by accounting rules or guidelines)Collateral Agreement;
(fe) prior to the commencement as soon as available and in any event no later than March 31 of each fiscal year of year, the Borrower, a detailed consolidated ’s budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and year, setting forth any material the assumptions used for purposes of in preparing such budget) and, promptly when available, any significant revisions of such budget;
(gf) 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 CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchangeexchange (other than registration statements on Form S-8 or, to the extent publicly available, any exhibits to any such report, proxy statement or other materials), or distributed by the Borrower to its public stockholders shareholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ig) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably request; provided that no patient-specific information shall be required to be delivered in violation of any law, rule or regulation of any Governmental Authority, and no information shall be required to be delivered if in the reasonable judgment of the applicable Loan Party’s counsel such delivery would result in the waiver of any attorney-client or other similar privilege with respect thereto. Information required to be delivered pursuant to this Section shall be deemed to have been delivered if such information, or one or more annual or quarterly reports containing such information, shall have been posted by the Administrative Agent on an IntraLinks or similar site to which the Lenders have been granted access or shall be available on the website of the SEC at xxxx://xxx.xxx.xxx or the Borrower at xxxx://xxx.xxxxxxxxxx.xxx. Information required to be delivered pursuant to this Section may also be delivered by electronic communications pursuant to procedures approved by the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (PharMerica CORP)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and for distribution to each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed one hundred twenty (120) days after the end of each fiscal year of the Borrower), its commencing with the fiscal year ending December 31, 2022, the audited consolidated balance sheet statements of assets and related liabilities, statements of operations, stockholders' equity changes in net assets and cash flows of the Borrower and its consolidated 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 KPMG LLP or any other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as disclosed therein) applied;
(b) within 45 forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed seventy-five (75) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower), its unaudited the consolidated balance sheet statements of assets and related liabilities, statements of operations, stockholders' equity changes in net assets and cash flows of the Borrower and its consolidated 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 corresponding period or periods of the previous fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently (except as disclosed therein) applied, subject to normal year-end audit adjustments and adjustments, the absence of footnotesfootnotes and as otherwise described therein;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) or (c) aboveof this Section 5.01, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether the Borrower has knowledge of a violation of this Agreement (including the occurrence of any event described in Article VII) that has resulted in the occurrence and continuation of a Default has occurred hereunder during the applicable period and, if a Default has occurredoccurred and is continuing, specifying the details thereof and any action which the Borrower has taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.126.01(b), 6.136.01(i), 6.14 6.01(l), 6.01(m), 6.01(n), 6.02(d), 6.02(e), 6.03(c), 6.03(d), 6.03(e), 6.03(h), 6.03(i), 6.04(d), 6.04(j), 6.05(b), 6.05(d), 6.05(e), 6.05(f), 6.07 and 6.15 6.12(cd ) or, if not in compliance, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (iii) to the extent not previously disclosed on a Form 10-K or Form 10-Q previously filed with the SEC, stating whether any change in GAAP as applied by (or in the application thereof of GAAP by) the Borrower has occurred since the date of Effective Date (but only if the Borrower's audited Borrower has not previously reported such change to the Administrative Agent and if such change has had a material effect on the financial statements referred to in Section 3.04 statements) and, if any such change has occurred, specifying the effect (unless such effect has been previously reported) as determined by the Borrower of such change on the financial statements accompanying such certificate;
(ed) concurrently with as soon as available and in any delivery event not later than the last Business Day of financial statements under paragraph the calendar month following each monthly accounting period (aending on the last day of each calendar month) aboveof the Borrower, (1) a Borrowing Base Certificate as at the last day of such accounting period presenting (i) the Borrower’s computation (and including the rationale for any industry reclassification) of the Borrowing Base, (ii) [reserved], (iii) (A) the quantity sold of any Portfolio Investment previously included in the Borrowing Base in such accounting period, (B) the value assigned to each such Portfolio Investment as of the prior accounting period, (C) the weighted average sale price of each such Portfolio Investment sold and (D) the variance between (B) and (C) and (iv) the aggregate amount of all accrued paid-in-kind interest and all paid-in-kind interest collected, in each case, during such accounting period on Portfolio Investments included in the Borrowing Base; and (2) if during such monthly accounting period the Borrower has declared or made any Restricted Payment pursuant to Section 6.05(d), a certificate of a Financial Officer of the accounting firm Borrower describing each such Restricted Payment and certifying that reported the conditions set forth in Section 6.05(d) were satisfied on the date of each such financial statements stating whether they Restricted Payment;
(e) promptly but no later than five (5) Business Days after any Financial Officer of the Borrower shall at any time have knowledge that there is a Borrowing Base Deficiency, a Borrowing Base Certificate as at the date the Borrower has knowledge of such Borrowing Base Deficiency indicating the amount of such Borrowing Base Deficiency as at the date the Borrower obtained knowledge during the course of their examination of such financial statements deficiency and the amount of any Default such Borrowing Base Deficiency as of the date not earlier than one (which certificate may be limited 1) Business Days prior to the extent required by accounting rules or guidelines)date the Borrowing Base Certificate is delivered pursuant to this paragraph;
(f) prior promptly upon receipt thereof, copies of all significant written reports submitted to management or the board of directors of the Borrower by the Borrower’s independent public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems of the Borrower or any of its Significant Subsidiaries delivered by such accountants to the commencement management or board of each fiscal year directors of the Borrower (other than the periodic reports that the Borrower’s independent auditors provide, in the ordinary course, to the audit committee of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements ’s board of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgetdirectors);
(g) promptly after (and only if) the same become publicly available, copies of all periodic and other reports, proxy statements and other materials sent to all stockholders or filed by any of the Borrower or any Subsidiary Obligors with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ih) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiaryof its Subsidiaries, or compliance by the Borrower and the Obligors with the terms of any this Agreement and the other Loan DocumentDocuments, or for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act and the Beneficial Ownership Regulation (to the extent applicable), as the Administrative Agent or any Lender (acting through the Administrative Agent) may reasonably request. Notwithstanding anything in this Section 5.01 to the contrary, the Borrower shall be deemed to have satisfied the requirements of this Section 5.01 (other than Sections 5.01(c), (d), (e) and (h)) if the reports, documents and other information of the type otherwise so required thereby are publicly available when filed on XXXXX at the xxx.xxx.xxx website or any successor service provided by the SEC.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Blue Owl Technology Finance Corp. II)
Financial Statements and Other Information. The Borrower Parent will furnish to the Administrative Agent and (with copies for each Lender:):
(a) within 90 100 days after the end of each fiscal year of the BorrowerParent, its audited consolidated balance sheet and related statements of operations, stockholders' shareholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG PricewaterhouseCoopers LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Parent and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied(the Lenders agree that Parent’s obligations under this paragraph (a) may be satisfied in respect of any fiscal year by delivery to the Administrative Agent, with copies for each Lender, within 100 days after the end of such fiscal year of its annual report for such fiscal year on Form 10-K as filed with the SEC);
(b) within 45 55 days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerParent, its unaudited consolidated balance sheet and related statements of operations, stockholders' equity 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 consolidated financial condition and results of operations of the Borrower Parent and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesfootnotes (the Lenders agree that Parent’s obligations under this paragraph (b) may be satisfied in respect of any fiscal quarter by delivering to the Administrative Agent, with copies for each Lender, within 55 days after the end of such fiscal quarter of its quarterly report for such fiscal quarter on Form 10-Q as filed with the SEC);
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower Parent (i) certifying, to such Financial Officer's knowledge after due inquiry, 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, thereto and (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 3.04(a)(i) 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gd) promptly after the same become publicly availableavailable or upon transmission or receipt thereof, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower any Credit Party or any Subsidiary of its Subsidiaries with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower any Credit Party to its public stockholders shareholders generally, as the case may be;
, provided that, with respect to materials filed with any national securities exchange, only material filings shall be required to be delivered pursuant to this paragraph (h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Dayd); and
(ie) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower any Credit Party or any Subsidiaryof its Subsidiaries, or compliance with the terms of any Loan Documentthis Credit Agreement, as the Administrative Agent or any Lender (acting through the Administrative Agent) may reasonably request. Documents required to be delivered pursuant to Section 5.01(a), (b) or (d) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date
(i) on which Parent posts such documents, or provides a link thereto on Parent’s website on the Internet at the website address listed on Schedule 10.01; or (ii) on which such documents are posted on Parent’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). The Administrative Agent shall have no obligation to request the posting or other electronic delivery of the documents referred to above. Each Credit Party hereby acknowledges that the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of Parent hereunder (collectively, “Parent Materials”) by posting the Parent Materials on IntraLinks, SyndTrak, Clearpar or another similar electronic system (the “Platform”).
Appears in 1 contract
Samples: Credit Agreement (Medtronic PLC)
Financial Statements and Other Information. The Borrower Catalytica ------------------------------------------- will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of Catalytica, (i) the Borrower, its audited consolidated and unaudited consolidating balance sheet and related statements of operations, stockholders' equity and cash flows of Catalytica, the Borrower and the Subsidiaries as of the end of and for such year and (ii) the unaudited consolidating balance sheet and related statements of operations, stockholders' equity and cash flows of Catalytica, the Borrower and the Restricted 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 in the case of such consolidated financial statements, reported on by KPMG Ernst & Young LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Catalytica and the Subsidiaries 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 Catalytica, (i) the Borrower, its unaudited consolidated and consolidating balance sheet and related statements of operations, stockholders' equity and cash flows of Catalytica, the Borrower and the Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year and (ii) the unaudited consolidating balance sheet and related statements of operations, stockholders' equity and cash flows of Catalytica, the Borrower and the Restricted 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 one of its Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower Catalytica and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days 30 days after the end of each of the first two fiscal months of each fiscal quarter of Catalytica, (i) the Borrower, its unaudited consolidated and consolidating balance sheet and related statements of operations operations, stockholders' equity and cash flows of Catalytica, the Borrower and the Subsidiaries as of the end of and for such fiscal month and then elapsed portion of the fiscal year, and (ii) the unaudited consolidating balance sheet and related statements of operations, stockholders' equity and cash flows of Catalytica, the Borrower and the Restricted Subsidiaries as of the end of and for such fiscal month 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, respects the consolidated financial condition and results of operations of the Borrower Catalytica and the Subsidiaries its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether a Default of which Catalytica or the Borrower is aware has occurred and is continuing and, if such a Default has occurredoccurred and is continuing, 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 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof not previously disclosed to the Lenders has occurred since the date of the BorrowerCatalytica's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Parent Borrower will furnish to the Administrative Agent and Agent, which will deliver to each Lender:
(a) within 90 days after the end of each fiscal year of the Parent Borrower, its audited consolidated balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Ernst & Young LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Parent Borrower and the 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 and consolidating balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Parent Borrower and the its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days 30 days after the end of each of the first two months fiscal month of each fiscal quarter year (other than the final fiscal month of each fiscal quarter) of the Parent Borrower, its unaudited consolidated and consolidating balance sheet and related statements of operations and cash flows as of the end of and for such fiscal month 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) (i) the previous fiscal yearyear and (ii) the Projections or the most recent forecasts delivered to the Administrative Agent pursuant to Section 5.01(i) below, all certified by one of its Financial Officers as presenting fairly, fairly in all material respects, respects the consolidated financial condition and results of operations of the Parent Borrower and the its consolidated Subsidiaries on a consolidated and consolidating basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (c) above, a certificate of a Financial Officer of the Parent Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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) during any FCCR Period, setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 of the Fixed Charge Coverage Ratio as of the last day of the last fiscal period covered by such financial statements and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Parent Borrower's ’s audited financial statements referred to in Section 3.04 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 paragraph clause (a) or (b) above, a certificate Compliance Certificate signed by a Financial Officer and the chief legal officer of the accounting firm Parent Borrower (delivered, and containing a statement that reported on such financial statements stating whether they obtained knowledge during it was delivered, in good faith after reasonable investigation) to the course effect that the then outstanding Revolving Exposure and Fixed Asset Revolving Exposure do not violate the provisions of their examination of such financial statements the Senior First Lien Note Indenture, the Senior Second Lien Note Indenture and the Senior Subordinated Note Indenture (including a reasonably detailed summary as to the calculations necessary to determine the absence of any Default (which certificate may be limited to the extent required by accounting rules or guidelinessuch violation);
(f) no later than 12:00 noon, New York City time, on Wednesday of each week, and at any time an Event of Default has occurred and is continuing, at such other times as may be requested by the Administrative Agent, a completed Borrowing Base Certificate calculating and certifying the Borrowing Base as of the last day of the prior week and accompanied by such supporting detail and documentation as shall be reasonably requested by the Administrative Agent; provided, however, that (A) the unit cost for Eligible Raw Materials may be calculated as of the last day of the immediately preceding calendar month and (B) the cost for polyvinyl chloride (PVC) resin, polyethylene (PE) resin and polypropylene (PP) resin may be calculated on a weekly average basis;
(g) to the extent requested by the Administrative Agent at any time when it reasonably believes that the then-existing Borrowing Base Certificate is materially inaccurate or that the Borrowing Base at such time would, if calculated at such time, be materially different than such Borrowing Base reflected in such then-existing Borrowing Base Certificate, within 10 Business Days of such request, a completed Borrowing Base Certificate that satisfies the requirements of Section 5.01(f) showing such Borrowing Base as of the date so requested, accompanied by the reports and supporting information contemplated thereby or otherwise requested by the Administrative Agent;
(h) within two Business Days of any request therefor, such other information concerning the amount, composition and manner of computation of the Borrowing Base as the Administrative Agent may reasonably request (in such detail as may reasonably be requested by the Administrative Agent);
(i) not later than 30 days following the commencement of each fiscal year year, (i) the annual business plan of the Borrower, a detailed consolidated budget Parent Borrower and its Subsidiaries for such fiscal year approved by the Board of Directors of the Parent Borrower, and (ii) forecasts prepared by management of the Parent Borrower for such fiscal year and each of the succeeding fiscal years through the fiscal year in which the Maturity Date is scheduled to occur (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for each such fiscal year), presented on a monthly basis for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) on an annual basis thereafter, and, promptly when available, any significant revisions of such budgetbusiness plan and forecasts;
(gj) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Parent Borrower or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ik) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Parent Borrower or any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent, the Administrative Agent or any Lender may reasonably request;
(l) as soon as available but in any event within fifteen days after the end of each calendar month, and at such other times as may be requested by the Administrative Agent, as of the period then ended:
(i) with respect to each Loan Party, a summary of Inventory by location and type and, if requested by the Administrative Agent, a supporting perpetual Inventory report, in each case accompanied by such supporting detail and documentation as may be reasonably requested by the Administrative Agent;
(ii) with respect to each Loan Party, a monthly trial balance showing Accounts outstanding aged from invoice date as follows: 1 to 30 days, 31 to 60 days, 61 to 90 days and 91 days or more, accompanied by such supporting detail and documentation as may be reasonably requested by the Administrative Agent;
(iii) with respect to each Loan Party, a schedule and aging of such Loan Party’s accounts payable; and
(iv) with respect to each Loan Party, a report from the resin integration purchase system (RIPS) listing all resin payments due as of the date of delivery of such report;
(m) as soon as available but in any event within five Business Days of after the end of each calendar month, and at such other times as may be requested by the Administrative Agent, a report setting forth additions and reductions (cash and non-cash) with respect to Accounts of each Loan Party, as of the period then ended; and
(n) promptly after the Parent Borrower obtains knowledge thereof, notice of the occurrence of any FCCR Period or Cash Collection Triggering Event.
Appears in 1 contract
Samples: Working Capital Credit Agreement (Pliant Corpororation)
Financial Statements and Other Information. The Borrower Parent will furnish to the Administrative Agent and (with copies for each Lender:):
(a) within 90 100 days after the end of each fiscal year of the BorrowerParent, its audited consolidated balance sheet and related statements of operations, stockholders' shareholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG PricewaterhouseCoopers LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Parent and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied(the Lenders agree that Parent’s obligations under this paragraph (a) may be satisfied in respect of any fiscal year by delivery to the Administrative Agent, with copies for each Lender, within 100 days after the end of such fiscal year of its annual report for such fiscal year on Form 10-K as filed with the SEC);
(b) within 45 55 days after the end of each of the first three fiscal quarters of each fiscal year of the BorrowerParent, its unaudited consolidated balance sheet and related statements of operations, stockholders' equity 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 consolidated financial condition and results of operations of the Borrower Parent and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotesfootnotes (the Lenders agree that Parent’s obligations under this paragraph (b) may be satisfied in respect of any fiscal quarter by delivering to the Administrative Agent, with copies for each Lender, within 55 days after the end of such fiscal quarter of its quarterly report for such fiscal quarter on Form 10-Q as filed with the SEC);
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower Parent
(i) certifying, to such Financial Officer's knowledge after due inquiry, 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, thereto and (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 3.04(a)(i) 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gd) promptly after the same become publicly availableavailable or upon transmission or receipt thereof, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower any Credit Party or any Subsidiary of its Subsidiaries with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower any Credit Party to its public stockholders shareholders generally, as the case may be;
, provided that, with respect to materials filed with any national securities exchange, only material filings shall be required to be delivered pursuant to this paragraph (h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Dayd); and
(ie) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower any Credit Party or any Subsidiaryof its Subsidiaries, or compliance with the terms of any Loan Documentthis Credit Agreement, as the Administrative Agent or any Lender (acting through the Administrative Agent) may reasonably request. 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 have been delivered on the date (i) on which Parent posts such documents, or provides a link thereto on Parent’s website on the Internet at the website address listed on Schedule 10.01; or (ii) on which such documents are posted on Parent’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) Parent shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to Parent 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) Parent 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. 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 Parent with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. Each Credit Party hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of Parent hereunder (collectively, “Parent Materials”) by posting the Parent Materials on IntraLinks, SyndTrak, Clearpar 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 Credit Parties or their respective 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. Parent hereby agrees that (w) all Parent 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 Parent Materials “PUBLIC,” Parent shall be deemed to have authorized the Administrative Agent, the Arrangers, the Issuing Banks and the Lenders to treat such Parent Materials as not containing any material non-public information with respect to the Credit Parties or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Parent Materials constitute Information, they shall be treated as set forth in Section 10.12); (y) all Parent 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 Parent Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, Parent shall be under no obligation to xxxx any Parent Materials “PUBLIC.”
Appears in 1 contract
Samples: Amendment and Restatement Agreement
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each LenderAgent:
(a) within 90 95 days after the end of each fiscal year of the Borrower, its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Ernst & Young LLP or other independent public accountants of recognized national standing (without a "going concernGOING 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP;
(b) within 45 50 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotesnotes;
(c) within 10 Business Days 30 days after the end of each of the first two months calendar month of each fiscal quarter year of the BorrowerBorrower (other than the third month of each fiscal quarter), its unaudited consolidated balance sheet and related statements of operations operations, stockholders' equity and cash flows as of the end of and for such month 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedGAAP, subject to normal year-end audit adjustments and the absence of footnotesnotes;
(d) within 95 days after the end of each fiscal year of JVC, its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by Ernst & Young LLP or other 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 JVC and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP;
(e) within 50 days after the end of each of the first three fiscal quarters of each fiscal year of JVC, its consolidated balance sheet and related statements of operations, 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; provided that, solely with respect to fiscal quarters of JVC ended prior to the Term Drawdown Date, the Borrower shall be required to deliver such financial statements only to the extent such financial statements are available to the Borrower;
(f) concurrently with any delivery of financial statements under paragraph clause (a), ) and (b) or (c) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.126.01 and Section 6.11 through 6.14, 6.13inclusive, 6.14 (iii) setting forth the Leverage Ratio at the last day of the fiscal quarter or fiscal year, as the case may be, with respect to which such financial statements relate and 6.15 a reasonably detailed calculation of such Leverage Ratio and (iiiiv) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements for the 1997 fiscal year referred to in Section 3.04 (but each such change need only be reported once) and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(eg) concurrently with any delivery of financial statements under paragraph 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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gh) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(hi) on prior to the sixth Business Day end of each calendar monthfiscal year of the Borrower, copies of operating plans and financial forecasts for the next fiscal year and any succeeding fiscal years, as prepared from time to time by the management of the Borrower for internal use;
(j) promptly upon receipt or delivery thereof, as the case may be, copies of any notice or request delivered in connection with the Put/Call Arrangements;
(k) promptly following the delivery thereof to the Borrower or its board of directors or management, a detailed copy of any management letter or written report by independent public accountants with respect to the policies and procedures of the Consolidated Backlog for such month, measured as of the close of business on the prior Business DayBorrower and its Subsidiaries that notes a "reportable condition"; and
(il) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or JVC or the Business, or compliance with the terms of any the Loan DocumentDocuments, as the Administrative Agent or any Lender acting through the Administrative Agent may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Subject to Section 5.12, the Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower, its audited consolidated and unaudited consolidating balance sheet and related statements of operations, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP Ernst & Young or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the 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 Borrower, its unaudited consolidated and consolidating balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days to the extent and as and when available, after the end of each of the first two fiscal months of each fiscal quarter of the Borrower, its unaudited consolidated and consolidating balance sheet and related statements of operations operations, stockholders’ equity and cash flows as of the end of and for such fiscal month 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, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.13 and 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's ’s audited financial statements referred to in Section 3.04 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 paragraph 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 Default (which certificate may be limited to the extent required by accounting rules or guidelines)) to the extent that the Borrower is able to obtain using commercially reasonable efforts the delivery of such certificate from such accounting firm;
(f) prior to the commencement January 15 of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material the assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said such Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ih) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Knowles Electronics Holdings Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower, its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other 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 consolidated financial condition and results of operations of the Borrower and the 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 Borrower, its unaudited consolidated balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
; (c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph (a), (b) or (c) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 6.12, 6.13, 6.14 and 6.15 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(i) 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 any Loan Document, as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Memc Electronic Materials Inc)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower, (i) its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG Ernst & Young LLP or other independent public accountants of recognized national standing (without a "going concern" or like modification, qualification or exception and without any modification, qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, and (ii) its consolidating balance sheet and related statements of operations, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidating basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, (i) its unaudited consolidated balance sheet and related statements of operations, 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 and (ii) its consolidating balance sheet and related statements of operations, 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 Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis or consolidating basis, as the case may be, in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 as soon as available and in no event later than 16 Business Days after the end of each of the first two months of each fiscal quarter of each fiscal year of the Borrower, (i) its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such fiscal month and the then elapsed portion of the fiscal year, prepared in accordance with past practice, 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 and (ii) its consolidating balance sheet and related statements of operations as of the end of and for such fiscal month and the then elapsed portion of the fiscal year, prepared in accordance with past practice, 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, fairly in all material respects, respects the consolidated financial finan- cial condition and results xxx xesults of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently appliedor consolidating basis, subject to normal year-end audit adjustments and as the absence of footnotescase may be;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (c) above, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, 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 as at the last day of the fiscal month, fiscal quarter or fiscal year, as the case may be, in respect of which such financial statements are delivered, demonstrating compliance with Sections 6.12, 6.13, 6.14 Section 6.12 (compliance with Section 6.12(a) shall be demonstrated monthly and 6.15 compliance with Section 6.12(b) shall be demonstrated quarterly) and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 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 paragraph 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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(g) 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 functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders shareholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ig) 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 any Loan Documentthis Agreement, as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Bridge Loan and Security Agreement (Smithfield Foods Inc)
Financial Statements and Other Information. The Borrower Company will furnish to the Administrative Agent and each LenderLender through the Administrative Agent:
(a) within 90 ninety (90) days after the end of each fiscal year Fiscal Year of the BorrowerCompany (or, if earlier, by the date that the Annual Report on Form 10-K of the Company for such Fiscal Year would be required to be filed under the rules and regulations of the SEC, giving effect to any extension available thereunder for the filing of such form), its audited consolidated balance sheet and related statements of operationsincome, stockholders' ’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal yearFiscal Year, all reported on by KPMG Deloitte & Touche, LLP or other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 sixty (60) days after the end of each of the first three fiscal quarters Fiscal Quarters of each fiscal year Fiscal Year of the BorrowerCompany (or, if earlier, by the date that the Quarterly Report on Form 10-Q of the Company for such Fiscal Quarter would be required to be filed under the rules and regulations of the SEC, giving effect to any extension available thereunder for the filing of such form), its unaudited consolidated balance sheet and related statements of operationsincome, stockholders' ’ equity and cash flows as of the end of and for such fiscal quarter Fiscal Quarter and the then elapsed portion of the fiscal yearFiscal 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 yearFiscal Year, all certified by one of its Financial Officers as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower Company and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), (b) or (cb) above, a certificate of a Financial Officer of the Borrower Company (i) certifying, to such Financial Officer's stating that he or she has obtained no knowledge after due inquiry, as to whether that a Default has occurred (except as set forth in such certificate) and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) (x) setting forth reasonably detailed calculations demonstrating the calculation of the Gross Leverage Ratio and the Net Leverage Ratio at the end of the relevant Fiscal Quarter or Fiscal Year, (y) demonstrating compliance with Sections 6.12Section 6.07 (to the extent such Section is in effect), 6.13and (z) for so long as Section 6.08 is in effect, 6.14 and 6.15 setting forth a reasonably detailed calculation of Available Liquidity at the end of the relevant Fiscal Quarter or Fiscal Year, and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the Borrower's audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;; #93177127v17
(e) concurrently with any delivery of financial statements under paragraph (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 Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(f) prior to the commencement of each fiscal year of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budget;
(gd) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower Company or any Subsidiary with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(he) on promptly following any request therefor, provide information and documentation reasonably requested by the sixth Business Day Administrative Agent or any Lender (acting through the Administrative Agent) for purposes of each calendar monthcompliance with applicable “know your customer” and anti-money-laundering rules and regulations, a detailed report of including, without limitation, the Consolidated Backlog for such month, measured as of PATRIOT Act and the close of business on the prior Business DayBeneficial Ownership Regulation; and
(if) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower Company or any Subsidiary, or compliance with the terms of any Loan Document, Subsidiary as the Administrative Agent or any Lender may reasonably requestrequest (other than materials protected by the attorney-client privilege and materials which the Company or such Subsidiary, as applicable, may not disclose without violation of a confidentiality obligation binding upon it). Documents required to be delivered pursuant to clauses (a), (b) and (d) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System.
Appears in 1 contract
Samples: Credit Agreement (Tapestry, Inc.)
Financial Statements and Other Information. The Borrower will furnish to the Administrative Agent and for distribution to each Lender:
(a) within 90 ninety (90) days after the end of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed one hundred twenty (120) days after the end of each fiscal year of the Borrower), its commencing with the fiscal year ending December 31, 2023, the audited consolidated balance sheet statements of assets and related liabilities, statements of operations, stockholders' equity changes in net assets and cash flows of the Borrower and its consolidated 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 KPMG Deloitte & Touche LLP or any other 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, fairly in all material respects, respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower (or such longer period permitted pursuant to any orders, declarations, laws, regulations or letters issued by the SEC or any other government or regulatory authority, not to exceed seventy-five (75) days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Borrower), its unaudited the consolidated balance sheet statements of assets and related liabilities, statements of operations, stockholders' equity changes in net assets and cash flows of the Borrower and its consolidated 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 corresponding period or periods of the previous fiscal year, all certified by one a Financial Officer of its Financial Officers the Borrower as presenting fairly in all material respects the consolidated financial condition and results of operations of the Borrower and the its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and adjustments, the absence of footnotesfootnotes and as otherwise described therein;
(c) within 10 Business Days after the end of each of the first two months of each fiscal quarter of the Borrower, its unaudited consolidated balance sheet and related statements of operations and cash flows as of the end of and for such month 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 consolidated financial condition and results of operations of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements under paragraph clause (a), ) or (b) or (c) aboveof this Section 5.01, a certificate of a Financial Officer of the Borrower (i) certifying, to such Financial Officer's knowledge after due inquiry, certifying as to whether the Borrower has knowledge that a Default has occurred and is continuing during the applicable period and, if a Default has occurredoccurred and is continuing, 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 6.126.01(b), 6.136.01(g), 6.14 6.01(i), 6.02(d), 6.02(e), 6.03(c), 6.03(d), 6.03(e), 6.03(h), 6.03(i), 6.04(d), 6.04(j), 6.05(b), 6.05(d), 6.05(e), 6.07 and 6.15 6.12(c) or, if not in compliance, specifying the details thereof and any action taken or proposed to be taken with respect thereto, and (iii) to the extent not previously disclosed on a Form 10-K or Form 10-Q previously filed with the SEC, stating whether any change in GAAP as applied by (or in the application thereof of GAAP by) the Borrower has occurred since the date of First Amendment Effective Date (but only if the Borrower's audited Borrower has not previously reported such change to the Administrative Agent and if such change has had a material effect on the financial statements referred to in Section 3.04 statements) and, if any such change has occurred, specifying the effect (unless such effect has been previously reported) as determined by the Borrower of such change on the financial statements accompanying such certificate;
(ed) concurrently as soon as available and in any event not later than the last Business Day of the calendar month following each monthly accounting period (ending on the last day of each calendar month) of the Borrower, (i) a Borrowing Base Certificate as at the last day of such accounting period presenting (A) the Borrower’s computation (and including the rationale for any industry reclassification) of the Borrowing Base, (B) the ratio of the Gross Borrowing Base to the Combined Revolving Debt Amount (showing the components of the Credit Exposure and the amount of such LC Exposures), (C) (I) the quantity sold of any Portfolio Investment previously included in the Borrowing Base in such accounting period, (II) the value assigned to each such Portfolio Investment as of the prior accounting period, (III) the weighted average sale price of each such Portfolio Investment sold and (IV) the variance between (II) and (III) and (D) the aggregate amount of all accrued paid-in-kind interest and all paid-in-kind interest collected, in each case, during such accounting period on Portfolio Investments included in the Borrowing Base and (ii) if during such monthly accounting period, the Borrower has declared or made any Restricted Payment pursuant to Section 6.05(d) (other than with any delivery respect to payments and repayments under Section 6.12(c) of financial statements under paragraph (a) aboveSpecial Longer Term Unsecured Indebtedness that does not constitute Excess Special Longer Term Unsecured Indebtedness), a certificate of a Financial Officer of the accounting firm Borrower demonstrating compliance with Section 6.05(d)(i) immediately after giving effect to such Restricted Payment and any Concurrent Transaction;
(e) promptly but no later than five (5) Business Days after any Financial Officer of the Borrower shall at any time have knowledge that reported on there is a Borrowing Base Deficiency, a Borrowing Base Certificate as at the date the Borrower has knowledge of such financial statements stating whether they Borrowing Base Deficiency indicating the amount of such Borrowing Base Deficiency as at the date the Borrower obtained knowledge during the course of their examination of such financial statements deficiency and the amount of any Default such Borrowing Base Deficiency as of the date not earlier than one (which certificate may be limited 1) Business Days prior to the extent required by accounting rules or guidelines)date the Borrowing Base Certificate is delivered pursuant to this paragraph;
(f) prior promptly upon receipt thereof, copies of all significant written reports submitted to management or the board of trustees of the Borrower by the Borrower’s independent public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems of the Borrower or any of its Significant Subsidiaries delivered by such accountants to the commencement management or board of each fiscal year trustees of the Borrower (other than the periodic reports that the Borrower’s independent auditors provide, in the ordinary course, to the audit committee of the Borrower, a detailed consolidated budget for such fiscal year (including a projected consolidated balance sheet and related statements ’s board of projected operations and cash flow as of the end of and for such fiscal year and setting forth any material assumptions used for purposes of preparing such budget) and, promptly when available, any significant revisions of such budgettrustees);
(g) promptly after (and only if) the same become publicly available, copies of all periodic and other reports, proxy statements and other materials sent to all stockholders or filed by any of the Borrower or any Subsidiary Obligors with the Securities and Exchange CommissionSEC, or any Governmental Authority succeeding to any or all of the functions of said Commissionthe SEC, or with any national securities exchange, or distributed by the Borrower to its public stockholders generally, as the case may be;
(h) on the sixth Business Day of each calendar month, a detailed report of the Consolidated Backlog for such month, measured as of the close of business on the prior Business Day; and
(ih) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiaryof its Subsidiaries, or compliance by the Borrower with the terms of any this Agreement and the other Loan DocumentDocuments, or for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act and the Beneficial Ownership Regulation (to the extent applicable), as the Administrative Agent or any Lender (acting through the Administrative Agent) may reasonably request. Notwithstanding anything in this Section 5.01 to the contrary, the Borrower shall be deemed to have satisfied the requirements of this Section 5.01 (other than Sections 5.01(c), (d), (e) and (h)) if the reports, documents and other information of the type otherwise so required thereby are publicly available when filed on XXXXX at the xxx.xxx.xxx website or any successor service provided by the SEC.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Blackstone Private Credit Fund)
