Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender: (a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; (b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year; (c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate; (d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement; (e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period; (f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year; (g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and (h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request.
Appears in 4 contracts
Samples: Credit Agreement (Tengasco Inc), Credit Agreement (Tengasco Inc), Credit Agreement (Riley Exploration - Permian, LLC)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each LenderAgent:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the BorrowerBorrower (or if the Borrower is no longer required to file periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, then 120 days after the end of each Fiscal Year) (commencing with the Fiscal Year ending December 31, 2019), a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USADeloitte & Touche, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such auditaudit (other than any “going concern” or similar qualification or exception related to the maturity or refinancing of the Obligations)) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP GAAP, and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of the Borrower (or if the Borrower is no longer required to file periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, then 60 days after the end of each Fiscal Year of Quarter) (commencing with the BorrowerFiscal Quarter ending September 30, 2019), an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying that such financial statements fairly present the financial condition, results of operations, shareholders’ equity and cash flows of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, in the case of quarterly financial statements subject only to normal year-end audit adjustments and the absence of footnotes, (ii) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (iiiii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VIVI (beginning with the Fiscal Quarter ended September 30, 2019), (iiiiv) specifying any change in the identity of the Borrower or any of its Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Borrower or any of its Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (ivv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, (vi) setting forth a list of all Subsidiaries of the Borrower (other than Excluded Subsidiaries and Specified Subsidiaries) that are not Subsidiary Loan Parties as of such date and setting forth in reasonable detail calculations of total assets of such Subsidiaries as of such date (and the percentage obtained by dividing such total assets by the total assets of the Borrower and its Subsidiaries (other than Excluded Subsidiaries) as of such date) and the total revenue of such Subsidiaries for the Test Period then ended (and the percentage obtained by dividing such total revenue by the total revenue of the Borrower and its Subsidiaries (other than Excluded Subsidiaries) for the Test Period then ended) and (vii) setting forth a list of all Excluded Subsidiaries as of such date and setting forth in reasonable detail calculations of (x) Indebtedness of such Excluded Subsidiaries incurred pursuant to Section 7.1(h) that remains outstanding as of such date, (y) the total amount of Investments made in Excluded Subsidiaries pursuant to Section 7.4(h) as of such date and (z) that portion of Consolidated EBITDA that is attributable to such Excluded Subsidiaries (and their respective Subsidiaries) with respect to the applicable Fiscal Year or Fiscal Quarter end;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrowercalendar year, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow;
(ge) promptly following after the written request of the Administrative Agentsame become publicly available, a list copies of all Persons purchasing Hydrocarbons from periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Loan PartyGovernmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(hf) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries (including information and documentation for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and the Beneficial Ownership Regulation) as the Administrative Agent or any Lender may reasonably requestrequest (provided that no such information shall be required to be provided if providing such information would violate confidentiality agreements or result in a loss of attorney-client privilege or a claim of attorney work product with respect to such information so long as the Borrower notifies the Administrative Agent that such information is being withheld and the reason therefor). So long as the Borrower is required to file periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, the Borrower shall be deemed to have satisfied its obligation to deliver the financial statements referred to in clauses (a), (b) and (e) upon the filing of such reports with the Securities and Exchange Commission.
Appears in 3 contracts
Samples: Credit Agreement (Pennant Group, Inc.), Credit Agreement (Pennant Group, Inc.), Credit Agreement (Pennant Group, Inc.)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each LenderAgent:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated and consolidating basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided, that to the extent that any Special Purpose Subsidiary has entered into a financing transaction, securitization or other monetization transaction and is treated as a consolidated entity and reflected on the consolidated balance sheet of the Borrower and its Subsidiaries, concurrently with the delivery of the financial statements referred to in this paragraph (a), the Borrower shall provide to the Administrative Agent a balance sheet for each such Special Purpose Subsidiary as of the end of such Fiscal Year and the related statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of such Special Purpose Subsidiary for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year, all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided, that to the extent that any Special Purpose Subsidiary has entered into a financing transaction, securitization or other monetization transaction and is treated as a consolidated entity and reflected on the consolidated balance sheet of the Borrower and its Subsidiaries, concurrently with the delivery of the financial statements referred to in this paragraph (b), the Borrower shall provide to the Administrative Agent a balance sheet for each such Special Purpose Subsidiary as of the end of such Fiscal Quarter and the related statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of such Special Purpose Subsidiary for such Fiscal Quarter, setting forth in each case in comparative form the figures for the previous Fiscal Quarter;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance CertificateBorrower;
(d) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Default or Event of Default (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) as soon as available and in any event not later than the tenth day of each calendar month, a Borrowing Base Certificate as of the last day of the preceding month, and as soon as available, a monthly brokerage statement for each securities or deposit account held by Borrower or any Subsidiary;
(f) promptly but no later than five Business Days after the Borrower shall at any time have knowledge that there is a Borrowing Base Deficiency, a Borrowing Base Certificate as at that date the Borrower has knowledge of such Borrowing Base Deficiency indicating the amount of the Borrowing Base Deficiency as at the date the Borrower obtained knowledge of such deficiency and the amount of the Borrowing Base Deficiency as of the date which is two Business Days prior to the date the Borrowing Base Certificate is delivered pursuant to this paragraph;
(g) as soon as available and in any event within 20 days after the end of each Fiscal Quarter of the Borrower, beginning with the Fiscal Quarter ended May 31, 2010, Borrower will submit its private investment valuations to the Administrative Agent;
(h) concurrently with the delivery of the financial statements referred to in subsection clauses (a) and (b) of this Sectionabove, beginning with the Fiscal Quarter ended May 31, 2010, a certificate signed by the principal executive officer or the principal financial officer valuation report of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures investments that are not Quoted Securities of the Borrower and its Subsidiaries for such current Fiscal YearSubsidiaries, conducted by an Approved Third Party Appraiser
(i) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(hj) promptly following any request therefor, such other information regarding the results of operations, business affairs affairs, financial condition and financial position loan and securities portfolio of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 2 contracts
Samples: Senior Secured Revolving Credit Agreement (Kayne Anderson Energy Development Co), Senior Secured Revolving Credit Agreement (Kayne Anderson Energy Development Co)
Financial Statements and Other Information. The Borrower will deliver furnish to each Lender through the Administrative Agent and each LenderAgent:
(a) as soon as available and but in any event within 90 120 days after the end of each Fiscal Year fiscal year of the Borrower, a copy its audited consolidated statement of the annual audited report for such Fiscal Year for the Borrower financial position and its Subsidiariesrelated statements of earnings, containing a consolidated balance sheet of the Borrower changes in shareholders’ equity and its Subsidiaries cash flows as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearyear, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USA, Ernst & Young LLP or other independent public accountants of nationally recognized national standing (without a “going concern” or like qualification, qualification or exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial position and the position, results of operations and cash flows of the Borrower and its consolidated Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and GAAP; provided, however, that the examination by Borrower may deliver, in lieu of the foregoing, the annual report of the Borrower for such accountants in connection fiscal year on Form 10-K filed with such consolidated the SEC, but only so long as the financial statements has been made contained in accordance with generally accepted auditing standardssuch annual report on Form 10-K are substantially the same in content as the financial statements referred to in the preceding provisions of this paragraph (a);
(b) as soon as available and but in any event within 45 60 days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the Borrower, an unaudited its consolidated balance sheet statement of the Borrower financial position and its Subsidiaries related statements of earnings and cash flows as of the end of and for such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements then elapsed portion of income the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial position, results of operations and cash flows of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided, however, that the Borrower may deliver, in lieu of the foregoing, the quarterly report of the Borrower for such Fiscal Quarter and fiscal quarter on Form 10-Q filed with the then elapsed portion SEC, but only so long as the financial statements contained in such quarterly report on Form 10-Q are substantially the same in content as the financial statements referred to in the preceding provisions of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Yearthis paragraph (b);
(c) concurrently with the each delivery of the financial statements referred to in subsections under clause (a) and or (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of a Financial Officer of the Borrower (i) certifying as to whether there exists whether, to the best knowledge of such Financial Officer, a Default has occurred and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then existshas occurred and is continuing, specifying the details thereof and the any action which the Borrower has taken or proposes proposed to take be taken with respect thereto, (ii) setting forth in reasonable detail reasonably detailed calculations demonstrating compliance with the financial covenants set forth in Article VI, Section 6.05 and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, 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 Compliance Certificatecertificate;
(d) concurrently with the each delivery of the financial statements referred to in subsection under clause (ba) of this Sectionabove, a certificate letter signed by the principal executive officer or accounting firm that reported on such financial statements to the principal financial officer effect that, in the course of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions examination upon which their report for such fiscal year was based (but without any special or additional audit procedures for that purpose other than review of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumesprovisions of this Agreement), nothing came to their attention that caused them to believe that there were any Defaults or Events of Default involving accounting matters or, if such accountants became aware of any such Defaults or Events of Default, specifying the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreementnature thereof;
(e) concurrently promptly after the same become publicly available, copies of all periodic and other reports on Forms 8-K, 10-Q and 10-K and all proxy statements filed by the Borrower or any Subsidiary with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed SEC or any other documents distributed by the principal executive officer Borrower to its shareholders generally which contain the equivalent information to that contained in such Forms or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly periodproxy statements;
(f) as soon as available and in upon any event within 60 days after sale or other disposition of Shares by the end of each Fiscal Year of the BorrowerBorrower or any Subsidiary, a 12 month budget for certificate of a Financial Officer setting forth in reasonable detail the Borrower calculations required to determine the portion of such Shares which constitute Restricted Margin Stock, the portion of such Shares which constitute Unrestricted Margin Stock and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for Net Cash Proceeds attributable to each such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partyportion; and
(hg) promptly following any request therefor, such other information regarding the results of operations, business affairs operations and financial position condition of the Borrower or any Subsidiary, or compliance with the terms of its Subsidiaries this Agreement or any other Loan Document, as the Administrative Agent or any Lender may reasonably request. Information required to be delivered pursuant to this Section 5.01 shall be deemed to have been delivered to the Lenders on the date on which the Borrower provides written notice to the Lenders that such information has been posted on the Borrower’s website on the Internet at xxxx://xxx.xxx.xxx or is available on the website of the SEC at xxxx://xxx.xxx.xxx (to the extent such information has been posted or is available as described in such notice). Information required to be delivered pursuant to this Section 5.01 may also be delivered by electronic communication pursuant to procedures approved by the Administrative Agent pursuant to Section 9.01(b).
Appears in 2 contracts
Samples: Credit Agreement (CSX Corp), Revolving Credit Agreement (CSX Corp)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 120 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, Deloitte & Touche LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit, except for any qualification to the effect that such accountants did not audit the financial statements of any Target of a Permitted Acquisition for any Fiscal Year prior to acquisition of the Target of a Permitted Acquisition by the Borrower or any Subsidiary) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated and consolidating basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or and the principal financial officer of the Borrower Borrower;
(id) certifying as promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to whether there exists and is continuing a Default any or Event all functions of Default on the date of such certificate andsaid Commission, if such a Default or an Event of Default then existswith any national securities exchange, specifying the details thereof and the action which or distributed by the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarterits shareholders generally, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with not less than ten days prior to such change, written notice of any change (i) in any Loan Party’s corporate name, (ii) in the delivery jurisdiction of the financial statements referred organization or formation of any Loan Party, (iii) in any Loan Party’s identity or form of organization or (iv) in any Loan Party’s Federal Taxpayer Identification Number. The Borrower also agrees promptly to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as notify the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in if any event within 60 days after the end of each Fiscal Year material portion of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan PartyCollateral is damaged or destroyed; and
(hf) promptly following any request therefortherefor by the Administrative Agent or any Lender and subject to applicable law and regulations, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request. So long as the Borrower is required to file periodic reports under Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended, Borrower may satisfy its obligation to deliver the financial statements referred to in clauses (a) and (b) above (i) by delivering such financial statements by electronic mail to such e-mail addresses as the Administrative Agent and Lenders shall have provided to Borrower from time to time, or (ii) to the extent such financial statements are publicly available by virtue of their filing with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Stanley, Inc.), Revolving Credit and Term Loan Agreement (Stanley, Inc.)
Financial Statements and Other Information. The Borrower Sponsor will deliver to the Administrative Agent Servicer and each LenderParticipant:
(a) as soon as available and in any event within 90 ninety (90) days after the end of each Fiscal Year of the BorrowerSponsor, a copy of the annual audited report for such Fiscal Year for the Borrower Sponsor and its Subsidiaries, containing a consolidated balance sheet of the Borrower Sponsor and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower Sponsor and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, LLP Ernst & Young or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower Sponsor and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards. It is understood and agreed that the requirements of this Section 6.1(a) (x) shall be satisfied by the delivery of the applicable annual report on Form 10-K of the Sponsor to the Securities and Exchange Commission if delivered within the applicable time period noted herein and is available to the Participants on XXXXX and (y) are effective as of the Effective Date;
(b) as soon as available and in any event within 45 forty-five (45) days after the end of each of the first three Fiscal Quarters Quarter of each Fiscal Year of the BorrowerSponsor (other than the last Fiscal Quarter), an unaudited consolidated balance sheet of the Borrower Sponsor and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower Sponsor and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the BorrowerSponsor’s previous Fiscal Year, all certified by the chief financial officer, treasurer or controller of the Sponsor as presenting fairly in all material respects the financial condition and results of operations of the Sponsor and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes. It is understood and agreed that the requirements of this Section 6.1(b) (x) shall be satisfied by the delivery of the applicable quarterly report on Form 10-Q of the Sponsor to the Securities and Exchange Commission if delivered within the applicable time period noted herein and is available to the Participants on XXXXX and (y) are effective as of the Effective Date;
(c) concurrently with the delivery of the financial statements referred to in subsections (aSections 6.1(a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of the Borrower a Responsible Officer, (i) certifying as to whether there exists and is continuing a Default Credit Event or an Unmatured Credit Event of Default on the date of such certificate andcertificate, and if such a Default Credit Event or an Unmatured Credit Event of Default then exists, specifying the details thereof and the action which the Borrower Sponsor has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, VII and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Sponsor’s audited financial statements of the Borrower and its Subsidiaries, referred to in Section 5.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (bSection 6.1(a) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Credit Event or Unmatured Credit Event (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the Securities and Exchange Commission, or with any national securities exchange, or distributed by the Sponsor to its shareholders generally, as the case may be, it being agreed that the requirements of this Section 6.1(e) may be satisfied by the delivery of the financial applicable reports, statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect materials to the relevant quarterly periodSecurities and Exchange Commission to the extent that such reports, statements or other materials are available to the Participants on XXXXX;
(f) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of the Sponsor or any Subsidiary as the Servicer or any Participant may reasonably request; and
(g) as soon as available and in any event within 60 days after the end of each Fiscal Year of the BorrowerSponsor, a 12 month budget forecasted income statement, balance sheet, and statement of cash flows for the Borrower and its Subsidiaries following Fiscal Year, in each case, on a quarter by quarter basis for the current such forecasted Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Yearinformation;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request.
Appears in 2 contracts
Samples: Loan Facility Agreement (Aaron's Inc), Loan Facility Agreement (Aaron's Inc)
Financial Statements and Other Information. The Borrower Credit Parties will deliver furnish to the Administrative Agent and each LenderNoteholder:
(a) as soon as available and available, but in any event within no later than the earlier of (x) 90 days after the end of each Fiscal Year fiscal year of the Borrower, a copy Credit Parties and (y) the date the Holding Company's financial statements of the annual audited report type referred to in clause (i) below are required to be filed with the Securities and Exchange Commission:
(i) consolidated and consolidating statements of income, retained earnings and cash flows of the Credit Parties for such Fiscal Year for fiscal year and the Borrower related consolidated and its Subsidiaries, containing a consolidated consolidating balance sheet sheets of the Borrower and its Subsidiaries Credit Parties as of at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the corresponding consolidated and consolidating figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, LLP or other preceding fiscal year,
(ii) an opinion of independent certified public accountants of nationally recognized national standing (without a “"going concern” " or like qualification, qualification or exception or explanation and without any qualification or exception as to the scope of such audit) stating that said consolidated financial statements referred to in the preceding clause (i) fairly present the consolidated financial condition and results of operations of the Credit Parties as at the end of, and for, such fiscal year in accordance with GAAP, and a statement of such accountants to the effect that, in making the examination necessary for their opinion, nothing came to their attention that caused them to believe that the Borrower was not in compliance with Section 7.9, insofar as such Section relates to accounting matters,
(iii) a certificate of a Financial Officer of the Borrower stating that said consolidating financial statements referred to in the preceding clause (i) fairly present the respective individual unconsolidated financial condition and results of operations of the Credit Parties, in each case in accordance GAAP consistently applied, as at the end of, and for, such fiscal year, and
(iv) to the extent that the Borrower is at such time subject to an obligation to file with the Securities and Exchange Commission the certifications required pursuant to Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002 (the "Act" and the applicable rules under the Exchange Act and otherwise in accordance with the requirements of the Xxxxxxxx-Xxxxx Act and the Exchange Act, certifications of each of the chief executive officer and chief financial officer of the Borrower substantially similar in form and substance to such required certifications, including a certification that (A) said consolidated financial statements referred to in the preceding clause (i) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading, and (B) such consolidated financial statements fairly present in all material respects the financial position and the condition, results of operations and cash flows of the Borrower and its Subsidiaries for such Fiscal Year Credit Parties on a consolidated basis as of and for the periods presented in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standardsconsistently applied;
(b) as soon as available and but in any event within no later than the earlier of (x) 45 days after the end of each of the first three Fiscal Quarters fiscal quarters of the Credit Parties and (y) the date the Holding Company's financial statements of the type referred to in clause (i) below are required to be filed with the Securities and Exchange Commission:
(i) consolidated and consolidating statements of income, retained earnings and cash flows of the Credit Parties for such period and for the period from the beginning of the respective fiscal year to the end of such period, and the related consolidated and consolidating balance sheets of the Credit Parties as at the end of such period, setting forth in each Fiscal Year case in comparative form the corresponding consolidated and consolidating figures for the corresponding period in Credit Parties' strategic plan for such period and for the corresponding period in the preceding fiscal year (except that, in the case of balance sheets, such comparison shall be to the last day of the prior fiscal year),
(ii) a certificate of a Financial Officer of the Borrower, which certificate shall state that said consolidated financial statements referred to in the preceding clause (i) fairly present the consolidated financial condition and results of operations of the Credit Parties and that said consolidating financial statements referred to in the preceding clause (i) fairly present the respective individual unconsolidated financial condition and results of operations of the Credit Parties, in each case in accordance with generally accepted accounting principles, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments and the omission of footnotes), and
(iii) to the extent that the Borrower is at such time subject to an unaudited consolidated balance sheet obligation to file with the Securities and Exchange Commission the certifications required pursuant to the Sarbanes—Oxley Act and the applicable rules under the Exchange Act and otherwise in accordance with the requirements of the Xxxxxxxx-Xxxxx Act and the Exchange Act, certifications of each of the chief executive officer and chief financial officer of the Borrower substantially similar in form and its Subsidiaries as substance to such required certifications, including a certification that (A) said consolidated financial statements referred to in the preceding clause (i) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the end circumstances under which such statements were made, not misleading, and (B) such financial statements fairly present in all material respects the financial condition, results of such Fiscal Quarter and the related unaudited consolidated statements of income operations and cash flows of the Borrower and its Subsidiaries on a consolidated basis as of and for such Fiscal Quarter the periods presented in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the then elapsed portion absence of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Yearfootnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 30 days after the end of each Fiscal Year month, internally prepared financial statements consisting of consolidated and consolidating statements of income, and cash flows of the BorrowerCredit Parties for such month and for the period from the beginning of the current fiscal year to the end of such month, and the related consolidated and consolidating balance sheets of the Credit Parties as at the end of such month setting forth in each case in comparative form the corresponding consolidated and consolidating figures for the corresponding period in Credit Parties' strategic plan for such period;
(d) concurrently with any delivery of financial statements under clauses (a) and (b) above, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management Compliance Certificate;
(e) [Reserved];
(f) concurrently with any delivery of financial statements under clause (a) above, a certificate of the Borrower and detailing accounting firm that reported on such financial statements stating whether they obtained knowledge during the projected cash flows and capital expenditures course of their examination of such financial statements of any Default (which certificate may be limited to the Borrower and its Subsidiaries for such current Fiscal Yearextent required by accounting rules or guidelines);
(g) promptly following as soon as available and in any event within 30 days after the written request beginning of the fiscal year of the Borrower, consolidated and consolidating statements of forecasted income for the Credit Parties for each fiscal month in such fiscal year and a forecasted consolidated and consolidating balance sheets of the Credit Parties, together with supporting assumptions which were reasonable when made, as at the end of each fiscal month, all prepared in good faith in reasonable detail and consistent with the Borrower's and the Borrower's past practices in preparing projections and otherwise reasonably satisfactory in scope to the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and;
(h) promptly following after the same become publicly available, copies of all registration statements, regular periodic and other reports and statements filed by the Holding Company or any Credit Party 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 market quotation system and copies of all press releases by the Holding Company or any Credit Party;
(i) promptly upon the mailing thereof to the shareholders of the Borrower generally, copies of all financial statements, reports and proxy or information statements so mailed;
(j) promptly upon the Administrative Agent's request, for each publication for which audits are regularly prepared by any Credit Party (i) audits of the magazine subscriptions for each of the publications of the Credit Parties as of December31 and June 30 each year performed by either Audit Bureau of Circulations or Business Publications Audit of Circulation, Inc. and (ii) audits of the membership subscriptions for the Credit Parties as of December 31 and June 30 each year;
(k) promptly upon the Administrative Agent's request, the Borrower shall deliver to the Administrative Agent tapes, disks or other storage media containing the then- current subscription and membership lists and other data bases maintained by each of the Credit Parties, together with the technical specifications for how to read such information, all in form reasonably satisfactory to the Administrative Agent which may include the requirement that the Borrower request therefor, that each of its and its Subsidiaries' fulfillment houses furnish such other information regarding the results of operationsCredit Parties' subscription lists as are maintained by such fulfillment houses; provided, business affairs and financial position of the Borrower or any of its Subsidiaries as however, that the Administrative Agent shall not divulge such information to any Person prior to the occurrence of an Event of Default; provided, further however, that after the occurrence and during the continuation of an Event of Default, the Administrative Agent may use that information for any lawful purpose (including a sale of one or more data bases), provided that the Administrative Agent acts in a commercially reasonable fashion in making such use, but the Administrative Agent shall have no obligation to make any Lender may reasonably request.such use of such information unless directed to do so by the Required Senior Lenders;
(1) promptly after delivery of the same to the Paying Agent, copies of all notices of redemption, payment instructions, officer's certificates, and other similar documents delivered to the Paying Agent under the Holding Company Notes Indenture in connection with any redemption of Holding Company Notes; and
Appears in 2 contracts
Samples: Senior Secured Floating Rate Note Purchase Agreement (Affinity Group Inc), Senior Secured Floating Rate Note Purchase Agreement (Affinity Group Holding, Inc.)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request.
Appears in 2 contracts
Samples: Credit Agreement (Tengasco Inc), Credit Agreement (Riley Exploration - Permian, LLC)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, Pricewaterhouse Coopers LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter (subject to changes resulting from audit and normal year-end adjustment) and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal chief executive officer or and the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance CertificateBorrower;
(d) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Default or Event of Default (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection clause (b) above for second and fourth Fiscal Quarters of this Sectioneach year, a certificate signed by the principal executive officer or of the principal financial officer or the general counsel of Borrower detailing (i) any change in (A) any Loan Party’s chief executive office or (B) any office in which it maintains books or records relating to Collateral owned by it in excess of $1,000,000 or any office or facility at which Collateral in excess of $1,000,000 owned by it is located, (ii) any change in any Loan Party’s federal taxpayer identification number or organizational number and (iii) the Borrower setting forth information as to quantities Borrower’s or production from the Loan Parties’ proved Oil and Gas Properties, volumes any Guarantor’s acquisition of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and any material Intellectual Property during such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly preceding two Fiscal Quarter period;
(f) as soon as available and in any event within 60 days promptly after the end same become publicly available, copies of each Fiscal Year all regular and periodic reports and all registration statements (other than on Form S-8 or a similar form) prospectuses and press releases filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the Borrowersaid Commission, a 12 month budget for or with any national securities exchange, or distributed by the Borrower and to its Subsidiaries for shareholders generally, as the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partycase may be; and
(hg) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Restricted Subsidiary as the Administrative Agent or any Lender may reasonably request. So long as the Borrower is required to file periodic reports under Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended, Borrower may satisfy its obligation to deliver the financial statements referred to in clauses (a) and (b) and (f) above by delivering such documents by electronic mail to such e-mail addresses as the Administrative Agent and Lenders shall have provided to Borrower from time to time or otherwise making such documents available via the Borrower’s web site.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Newmarket Corp), Revolving Credit Agreement (Newmarket Corp)
Financial Statements and Other Information. The Borrower will deliver furnish to the Administrative Agent and for distribution to each Lender:
(a) as As soon as available and available, but in any event within 90 five Business Days after the date on which such financial statements are required to be filed with the SEC (after giving effect to any permitted extensions) with respect to each of its Fiscal Years commencing with the Fiscal Year ending December 31, 2022 (or, if such financial statements are not required to be filed with the SEC, on or before the date that is ninety (90) days after the end close of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its SubsidiariesYear), containing a audited consolidated balance sheet financial statements of the Borrower and its Subsidiaries for such Fiscal Year, including its consolidated balance sheet as of at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ changes in equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, all and prepared in reasonable detail accordance with GAAP and reported on accompanied by BDO USA, LLP or other an opinion of independent certified public accountants of nationally recognized standing (without a standing, which opinion shall not be subject to any “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such auditaudit (other than any such qualification or exception that is expressly with respect to, or expressly resulting from, (i) an upcoming maturity date under this Agreement or (ii) any prospective default or event of default in respect of Section 6.04) (it being understood and agreed that such report and opinion may include an explanatory note that is not a “going concern” exception or qualification or exception as to the effect scope of the audit performed as set forth above), and which opinion shall state that such audit was conducted in accordance with generally accepted auditing standards and said financial statements fairly present, in all material respects, the financial condition and results of operation of the Borrower and its consolidated Subsidiaries on a consolidated basis as at the end of, and for, such Fiscal Year in accordance with GAAP consistently applied.
(b) As soon as available, but in any event within five Business Days after the date on which such financial statements present are required to be filed with the SEC (after giving effect to any permitted extensions) with respect to each of the first three Fiscal Quarters of each of its Fiscal Years commencing with the Fiscal Quarter ending March 31, 2023 (or, if such financial statements are not required to be filed with the SEC, on or before the date that is forty-five (45) days after the end of such Fiscal Quarter), unaudited consolidated financial statements of the Borrower and its Subsidiaries for such Fiscal Quarter, including its consolidated unaudited balance sheets as at the end of such Fiscal Quarter and related consolidated unaudited statements of income, changes in equity and cash flows for such Fiscal Quarter and the then-elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, all certified by the Borrower executed on its behalf by a Financial Officer of the Borrower as presenting fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis as at the end of, and for, the period covered thereby in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and that the examination absence of footnotes.
(c) Simultaneously with the delivery of each set of Financial Statements, a Compliance Certificate with respect to the fiscal period covered by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;statements.
(bd) as Within five (5) Business Days after any Rating Agency shall have announced a change in such Rating Agency’s Index Debt Rating, written notice of such change in such Index Debt Rating.
(e) As soon as available possible and in any event within 45 days ten (10) Business Days after the end of each Borrower has Knowledge that any of the first three Fiscal Quarters of each Fiscal Year events or conditions specified below has occurred or exists with respect to any Plan or Multiemployer Plan that would reasonably be expected (individually or in the aggregate) to result in a Material Adverse Effect, notice of the Borrowersame and a statement, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer Borrower executed on its behalf by a Financial Officer describing said event or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof condition and the action which the Borrower has taken or applicable member of the Controlled Group proposes to take with respect theretothereto (and a copy of any report or notice required to be filed with or given to the PBGC by the Borrower or applicable member of the Controlled Group with respect to such event or condition):
(i) the occurrence of any Reportable Event, or any waiver shall be requested under Section 412(c) of the Code with respect to any Plan;
(ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying receipt by the Borrower or any change in the identity member of the Controlled Group from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan or the distribution under Section 4041(c) of ERISA of a notice of intent to terminate any Plan, or any action taken by the Borrower, any of its Subsidiaries as or any member of the end Controlled Group to terminate any Plan under Section 4041(c) of such Fiscal Year ERISA or Fiscal Quarter from the Borrower, any of its Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as any member of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether Controlled Group would reasonably be expected to incur any change in GAAP or the application thereof has occurred since the date liability under Title IV of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request ERISA with respect to the relevant quarterly periodtermination of any Plan;
(iii) the institution by PBGC of proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the Borrower, any of its Subsidiaries or any member of the Controlled Group of a notice from any Multiemployer Plan that such action has been taken by PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a Plan or Multiemployer Plan by the Borrower, any of its Subsidiaries or any member of the Controlled Group that would reasonably be expected to result in liability of the Borrower, any of its Subsidiaries or such Controlled Group member under Title IV of ERISA (including the obligation to satisfy secondary liability as a result of a purchaser default), or the receipt by the Borrower, any of its Subsidiaries or any member of the Controlled Group of a notice from a Multiemployer Plan that it is insolvent pursuant to Section 4245 of ERISA or that it intends to terminate or has terminated under Section 4041A of ERISA;
(v) the receipt by the Borrower, any of its Subsidiaries or any member of the Controlled Group of any notice or the receipt by any Multiemployer Plan from the Borrower, any of its Subsidiaries or any member of the Controlled Group of any notice concerning the imposition of any liability arising from a complete or partial withdrawal from a Multiemployer Plan or a determination that a Multiemployer Plan is, or would reasonably be expected to be, insolvent or in endangered, critical or critical and declining status;
(vi) the institution of a proceeding by a fiduciary of any Multiemployer Plan against the Borrower, any of its Subsidiaries or any member of the Controlled Group to enforce Section 515 of ERISA, which proceeding is not dismissed within 30 days; or
(vii) the adoption of an amendment to any Plan that would result in the loss of tax exempt status of the trust of which such Plan is a part if the Borrower, any of its Subsidiaries or any member of the Controlled Group fails to timely provide security to the Plan in accordance with the provisions of Section 436 of the Code and Section 206 of ERISA.
(f) as soon as available and in any event within 60 days after Promptly upon the end of each Fiscal Year of the Borrowerfiling thereof, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list copies of all Persons purchasing Hydrocarbons from registration statements (other than Form S-8 or any Loan Party; and
similar form) and annual (h) promptly following other than Form 11-K or any request thereforsimilar form), such quarterly, monthly or other information regarding the results of operations, business affairs and financial position of regular reports which the Borrower or any of its Subsidiaries files with the SEC, in each case to the extent not otherwise required to be delivered under this Agreement.
(g) Promptly upon the furnishing thereof to all shareholders of the Borrower generally, copies of all financial statements, reports and proxy statements so furnished, in each case to the extent not otherwise required to be delivered under this Agreement.
(h) Promptly, and in any event within five (5) Business Days, after the Borrower obtains Knowledge thereof, notice of the occurrence of a Default or Event of Default, specifying the nature thereof and what action the Borrower proposes to take with respect thereto.
(i) Promptly, and in any event within ten (10) Business Days, after the Borrower obtains Knowledge thereof, (i) the pendency or commencement of any litigation, arbitration or governmental proceeding against the Borrower or any Subsidiary which, in the opinion of the Borrower’s management would have or would reasonably be expected to have a Material Adverse Effect and (ii) the institution of any proceeding against any Loan Party or any of its Subsidiaries with respect to, or the receipt of notice by such Person of potential liability or responsibility for violation or alleged violation of, any law, rule or regulation (including any Environmental Law) which would reasonably be expected to have a Material Adverse Effect.
(j) Simultaneously with the delivery of each set of Financial Statements delivered under Section 5.01(a), certificates of insurance coverage with respect to the insurance required by Section 5.04 or copies of the applicable policies.
(k) Promptly following any reasonable request therefor, (i) such other information (including nonfinancial information) as the Administrative Agent or any other Lender may from time to time reasonably requestrequest and (ii) 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 or information required to be delivered or provided pursuant to Section 5.01(a), Section 5.01(b), Section 5.01(e), Section 5.01(f) or Section 5.01(g) may be delivered electronically and shall be deemed to have been so delivered on the date (x) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s public website or (y) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website (including the SEC’s XXXXX 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 may make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Company Materials”) by posting the Company Materials on an Approved Electronic Platform. The Borrower hereby acknowledges that certain of the Lenders may from time to time elect to be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”) and the Borrower hereby agrees that (w) all Company 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 Company Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Company Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws, (y) all Company Materials marked “PUBLIC” are permitted to be made available through a portion of the Approved Electronic Platform designated “Public Investor” and (z) the Administrative Agent shall be entitled to treat Company Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Approved Electronic Platform not designated “Public Investor.”
Appears in 2 contracts
Samples: Credit Agreement (EXPAND ENERGY Corp), Credit Agreement (Chesapeake Energy Corp)
Financial Statements and Other Information. The Borrower Transaction Parties will deliver furnish to the Administrative each Agent and each Lender:
(a) as soon as available and in any event commencing with the fiscal year of Holdings ending October 3, 1998, within 90 days after the end of each Fiscal Year fiscal year of the BorrowerHoldings, a copy of the annual audited report for such Fiscal Year for the Borrower its consolidated and its Subsidiaries, containing a consolidated consolidating balance sheet and related statements of the Borrower operations, stockholders' equity and its Subsidiaries cash flows as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearyear, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all audited (in reasonable detail the case of such consolidated statements) and reported on by BDO USA, LLP or other independent public accountants of nationally recognized national standing (without a “"going concern” " or like qualification, qualification or exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower Holdings and its consolidated Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standardsconsistently applied;
(ba) as soon as available and in any event commencing with the fiscal year of Holdings ending October 3, 1998, within 45 days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the BorrowerHoldings, an unaudited its consolidated and consolidating balance sheet and related statements of the Borrower operations, stockholders' equity and its Subsidiaries cash flows as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andthe fiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and period or periods of (or, in the corresponding portion case of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)balance sheet, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of) the previous fiscal year, all certified by one of such Fiscal Year or Fiscal Quarter from its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of Holdings and its consolidated Subsidiaries identified on a consolidated basis in accordance with GAAP consistently applied, subject to the Administrative Agent normal year-end audit adjustments, purchase accounting adjustments and the Lenders on the Closing Date or as absence of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatefootnotes;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request.
Appears in 2 contracts
Samples: Credit Agreement (Hechinger Co), Credit Agreement (Hechinger Co)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and (which the Administrative Agent shall forward to each Lender:):
(a) as soon as available and in any event event, in the case of the consolidated statements required hereunder only, within 90 120 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated and, when available and to the extent prepared for SUI, consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated and, when available and to the extent prepared for SUI, consolidating statements of income, stockholders’ equity and cash flows (together with with, in the case of consolidated financial statements, all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and and, in the case of the consolidated financial statements only, reported on by BDO USA, LLP PriceWaterhouse Coopers or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements statement of income and consolidated statement of cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal YearYear (it being understood that quarterly financial statements are not required to have footnote disclosures and are subject to normal year-end adjustments);
(c) concurrently with the delivery as of the financial statements referred earlier of the date required by the DOE for annual delivery or the date actually delivered to the DOE for each calendar year, and in subsections (a) and (b) any event not later than July 1 of this Section (other than such calendar year, a calculation of the financial statements Consolidated DOE Financial Responsibility Composite Score for the fourth Borrower as of the end of the immediately preceding Fiscal Quarter of each Fiscal Year delivered pursuant Year, attached as an exhibit to subsection (b) of this Section), a DOE Compliance Certificate signed by the principal executive officer or and the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance CertificateBorrower;
(d) concurrently with the delivery of the financial statements referred to in subsection clauses (a) and (b) of this Sectionabove, a certificate Compliance Certificate signed by the principal executive officer or and the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreementBorrower;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the BorrowerYear, a 12 month budget for and projection of the Borrower and its Subsidiaries for the current next succeeding Fiscal Year prepared Year;
(f) promptly after the same become publicly available, notice of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the management of Borrower to its shareholders generally, as the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Yearcase may be;
(g) promptly following the upon such change, written request notice of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any change (i) in any Loan Party’s corporate name, (ii) in the jurisdiction of organization or formation of any Loan Party, (iii) in any Loan Party’s identity or form of organization or (iv) in any Loan Party’s Federal Taxpayer Identification Number. The Borrower agrees not to effect or permit any change referred to in the preceding sentence unless all filings have been made under the Uniform Commercial Code or otherwise that are required in order for the Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral. The Borrower also agrees promptly to notify the Administrative Agent if any material portion of the Collateral is damaged or destroyed; and
(h) promptly following any request therefortherefor by the Administrative Agent, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request. Notwithstanding any other provision of this Agreement, Lenders and Administrative Agent acknowledge and agree that nothing in this Agreement or the other Loan Documents shall require the Borrower and its Subsidiaries to disclose education records and information from such records in a manner inconsistent with the requirements of the Family Educational Rights and Privacy Act, 20 U.S.C. 1232g (or any successor statute); its implementing regulations, 34 C.F.R. pt. 99 (or any successor regulation); applicable accreditation standards, policies, and procedures; and applicable state laws and regulations.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Strayer Education Inc), Revolving Credit and Term Loan Agreement (Strayer Education Inc)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as reasonably available and in any event within 90 100 days after the end of each Fiscal Year of the BorrowerYear, a copy of the annual audited report financial statements for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes notes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, Ernst & Young LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination examination by such accountants in connection with such consolidated consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available reasonably available and in any event within 45 50 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the BorrowerYear, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of at the end of such Fiscal Quarter and the related unaudited consolidated statements of income income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed all certified by the principal executive officer or the principal chief financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth presenting fairly in reasonable detail calculations demonstrating compliance with all material respects the financial covenants set forth in Article VI, (iii) specifying any change in the identity condition and results of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures operations of the Borrower and its Subsidiaries for such current Fiscal Yearon a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of notes;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Dollar General Corp), Revolving Credit Agreement (Dollar General Corp)
Financial Statements and Other Information. The Borrower Sponsor will deliver to the Administrative Agent Servicer and each LenderParticipant:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year fiscal year of the BorrowerSponsor, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower Sponsor and its Subsidiaries, containing a consolidated and unaudited consolidating balance sheet of the Borrower Sponsor and its Subsidiaries as of the end of such Fiscal Year fiscal year and the related consolidated and unaudited consolidating statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower Sponsor and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USA, LLP Ernst & Young or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower Sponsor and its Subsidiaries for such Fiscal Year fiscal year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each fiscal quarter of each fiscal year of the first three Fiscal Quarters of each Fiscal Year of Sponsor (other than the Borrowerlast fiscal quarter), an unaudited consolidated and consolidating balance sheet of the Borrower Sponsor and its Subsidiaries as of the end of such Fiscal Quarter fiscal quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower Sponsor and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the BorrowerSponsor’s previous Fiscal Yearfiscal year, all certified by the chief financial officer, treasurer or controller of the Sponsor as presenting fairly in all material respects the financial condition and results of operations of the Sponsor and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of the Borrower a Responsible Officer, (i) certifying as to whether there exists and is continuing a Default Credit Event or an Unmatured Credit Event of Default on the date of such certificate andcertificate, and if such a Default Credit Event or an Unmatured Credit Event of Default then exists, specifying the details thereof and the action which the Borrower Sponsor has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, VII and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Sponsor’s audited financial statements of the Borrower and its Subsidiaries, referred to in Section 5.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Credit Event or Unmatured Credit Event (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the financial statements referred to in subsection (b) of this Sectionsaid Commission, a certificate signed or with any national securities exchange, or distributed by the principal executive officer or the principal financial officer of the Borrower setting forth information as Sponsor to quantities or production from the Loan Parties’ proved Oil and Gas Propertiesits shareholders generally, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent case may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partybe; and
(hf) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower Sponsor or any of its Subsidiaries Subsidiary as the Administrative Agent Servicer or any Lender Participant may reasonably request; and
(g) as soon as available and in any event within 30 days after the end of each fiscal year of the Sponsor, a forecasted income statement, balance sheet, and statement of cash flows for the following fiscal year.
Appears in 2 contracts
Samples: Loan Facility Agreement (Aaron's Inc), Loan Facility Agreement (Aaron Rents Inc)
Financial Statements and Other Information. The Borrower Sponsor will deliver to the Administrative Agent Servicer and each LenderParticipant:
(a) as soon as available and in any event within 90 ninety (90) days after the end of each Fiscal Year of the BorrowerHoldings, a copy of the annual audited report for such Fiscal Year for Holdings, the Borrower Sponsor and its Restricted Subsidiaries, containing a consolidated balance sheet of Holdings, the Borrower Sponsor and its Restricted Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of Holdings, the Borrower Sponsor and its Restricted Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, LLP Ernst & Young or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of Holdings, the Borrower Sponsor and its Restricted Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards. It is understood and agreed that the requirements of this Section 6.1(a) (x) shall be satisfied by the delivery of the applicable annual report on Form 10-K of Holdings to the Securities and Exchange Commission if delivered within the applicable time period noted herein and is available to the Participants on XXXXX and (y) are effective as of the Effective Date;
(b) as soon as available and in any event within 45 forty-five (45) days after the end of each of the first three Fiscal Quarters Quarter of each Fiscal Year of Holdings (other than the Borrowerlast Fiscal Quarter), an unaudited consolidated balance sheet of Holdings, the Borrower Sponsor and its Restricted Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of Holdings, the Borrower Sponsor and its Restricted Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s Holdings’ previous Fiscal Year, all certified by the chief financial officer, treasurer or controller of Holdings as presenting fairly in all material respects the financial condition and results of operations of Holdings, the Sponsor and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes. It is understood and agreed that the requirements of this Section 6.1(b) (x) shall be satisfied by the delivery of the applicable quarterly report on Form 10-Q of Holdings to the Securities and Exchange Commission if delivered within the applicable time period noted herein and is available to the Participants on XXXXX and (y) are effective as of the Effective Date;
(c) concurrently with the delivery of the financial statements referred to in subsections (aSections 6.1(a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of the Borrower a Responsible Officer, (i) certifying as to whether there exists and is continuing a Default Credit Event or an Unmatured Credit Event of Default on the date of such certificate andcertificate, and if such a Default Credit Event or an Unmatured Credit Event of Default then exists, specifying the details thereof and the action which the Borrower Sponsor has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, VII and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Holdings’ audited financial statements of the Borrower and its Subsidiaries, referred to in Section 5.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (bSection 6.1(a) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Credit Event or Unmatured Credit Event (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the Securities and Exchange Commission, or with any national securities exchange, or distributed by Holdings to its shareholders generally, as the case may be, it being agreed that the requirements of this Section 6.1(e) may be satisfied by the delivery of the financial applicable reports, statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect materials to the relevant quarterly periodSecurities and Exchange Commission to the extent that such reports, statements or other materials are available to the Participants on XXXXX;
(f) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial condition of Holdings, the Sponsor or any Restricted Subsidiary as the Servicer or any Participant may reasonably request;
(g) as soon as available and in any event within 60 days after the end of each Fiscal Year of the BorrowerHoldings, a 12 month budget forecasted income statement, balance sheet, and statement of cash flows for the Borrower and its Subsidiaries following Fiscal Year, in each case, on a quarter by quarter basis for the current such forecasted Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partyinformation; and
(h) promptly following concurrently with the delivery of the financial statements referred to in Sections 6.1(a) and (b), for any request thereforperiod in which there exist any Unrestricted Subsidiaries, unaudited consolidating financial statements reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such other information regarding financial statements delivered pursuant to Section 6.1(a) and (b), all in reasonable detail and certified by the chief executive officer, chief financial officer, treasurer or controller of the Sponsor as fairly presenting in all material respects the financial condition, results of operations, business affairs shareholders’ equity and financial position cash flows of Holdings, the Borrower or any Sponsor and its Restricted Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of its Subsidiaries as the Administrative Agent or any Lender may reasonably requestfootnotes.
Appears in 2 contracts
Samples: Loan Facility Agreement (Aaron's Company, Inc.), Loan Facility Agreement (Aaron's Company, Inc.)
Financial Statements and Other Information. The Borrower will deliver Furnish to the Administrative Agent and each LenderAgent:
(a) as As soon as available and and, in any event event, within 90 days after the end close of each Fiscal Year of the Borrowerfiscal year, a copy of (x) the annual audited report for Company’s 10-K in respect of such Fiscal Year for fiscal year, and (y)
(i) the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries Company’s Consolidated Balance Sheet as of the end of such Fiscal Year fiscal year, and (ii) the related consolidated statements Consolidated Statement of incomeIncome and Retained Earnings, stockholders’ equity and cash flows (together with all footnotes thereto) Consolidated Statement of Cash Flows, as of and through the Borrower and its Subsidiaries for end of such Fiscal Yearfiscal year, setting forth in each case in comparative form the corresponding figures for in respect of the previous Fiscal Yearfiscal year, all in reasonable detail detail, and reported on accompanied by BDO USAa report of the Company’s auditors, LLP or other independent public accountants of nationally recognized standing which report shall state that (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of A) such audit) to the effect that auditor has audited such financial statements present fairly in all material respects the financial position and the results of operations of the Borrower and its Subsidiaries for statements, (B) such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been audit was made in accordance with generally accepted auditing standardsstandards in effect at the time and provides a reasonable basis for such opinion, and (C) said financial statements have been prepared in accordance with GAAP (provided that, notwithstanding the foregoing, such report may be with reference to such financial statements which have given effect to the consolidation of any FIN 46 Entities with the Company);
(b) as [reserved];
(c) As soon as available 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 fiscal year, a copy of (x) the BorrowerCompany’s 10-Q in respect of such fiscal quarter, an unaudited consolidated balance sheet of and (y) (i) the Borrower and its Subsidiaries Company’s Consolidated Balance Sheet as of the end of such Fiscal Quarter quarter, and (ii) the related unaudited consolidated statements Consolidated Statement of income Income and cash flows Retained Earnings, and Consolidated Statement of Cash Flows for (A) such quarter, and (B) the period from the beginning of the Borrower and its Subsidiaries for such Fiscal Quarter and then current fiscal year to the then elapsed portion end of such Fiscal Year andquarter, commencing on December 31in each case in comparable form with the prior fiscal year, 2017, together all in reasonable detail and prepared in accordance with comparative figures for the corresponding Fiscal Quarter GAAP (without footnotes and the corresponding portion of the Borrower’s previous Fiscal Yearsubject to normal year-end and audit adjustments);
(cd) concurrently Simultaneously with the delivery of the financial statements referred to in subsections (arequired by Section 5.07(a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Sectionor 5.07(c), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date a Compliance Certificate, as of the mostly recently delivered audited financial statements fiscal period then ended, certified by a Financial Officer of the Borrower Company, which shall certify that no Default or Event of Default shall have occurred and its Subsidiaries, andbe continuing or, if any change has occurredso, specifying the effect all such Defaults and Events of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this SectionDefault, a certificate signed by the principal executive officer or the principal financial officer of the Borrower and setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreementcomputations in reasonable detail demonstrating compliance with Section 6.08;
(e) concurrently with the delivery Upon an executive officer of the financial statements Company becoming aware thereof, prompt written notice of: (i) any citation, summons, subpoena, order to show cause or other order naming the Company or any Subsidiary a party to any proceeding before any Governmental Authority which could reasonably be expected to have a Material Adverse Effect, and include with such notice a copy of such citation, summons, subpoena, order to show cause or other order, (ii) any lapse or other termination of any license, permit, franchise or other authorization issued to the Company or any Subsidiary by any Governmental Authority, (iii) any refusal by any Governmental Authority to renew or extend any license, permit, franchise or other authorization, and (iv) any dispute between the Company or any Subsidiary and any Governmental Authority, which lapse, termination, refusal or dispute, referred to in subsection clause (bii), (iii) of this Sectionor (iv) above, could reasonably be expected to have a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly periodMaterial Adverse Effect;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year Upon an executive officer of the BorrowerCompany becoming aware thereof, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management prompt written notice of the Borrower occurrence of (i) each Default, and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year(ii) each Material Adverse Effect;
(g) promptly following Upon the written request forwarding thereof to the shareholders of the Administrative AgentCompany generally, a list copies of all Persons purchasing Hydrocarbons from any Loan Party; andfinancial statements, reports and proxy statements so furnished;
(h) promptly following any Promptly after either rating agency providing a rating for the Index Debt pursuant to the definition of “Applicable Rate” shall have publicly announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change;
(i) Promptly after request therefor, such other information regarding relating to the results of operations, financial condition or business affairs and financial position of the Borrower Company, the Subsidiaries and the FIN 46 Entities, as the Administrative Agent, any Issuing Bank, any Swingline Lender or any Lender at any time or from time to time may reasonably request (it being understood and agreed that neither the Company nor any of its Subsidiaries as shall be required to disclose or discuss, or permit the inspection, examination or making of extracts of, any records, books, information or account or other matter (1) in respect of which disclosure to the Administrative Agent, any Lender or their representatives is then prohibited by applicable law or any agreement binding on the Company or its Subsidiaries; (2) that is protected from disclosure by the attorney-client privilege or the attorney work product privilege or (3) constitutes non-financial trade secrets or non-financial proprietary information); and
(j) Promptly after request therefor, 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. Each report and other document required to be delivered by the Company pursuant to subparagraphs (a), (c), (d) and (g) of this Section 5.07 shall be deemed to have been delivered on the date upon which (i) other than in the case of the Compliance Certificate, the Company files such documents with the SEC via the XXXXX filing system (or any successor system), to the extent such documents are publicly available, or (ii) the Company notifies the Administrative Agent that such report or other document has been posted at a site (the address of which shall be contained in such notice) on the world wide web, which site is accessible by a widely held nationally recognized web browser, from which such report or document may reasonably requestbe readily viewed and printed. The Administrative Agent shall promptly furnish to each Lender a copy (in the form received) of each notice or other information provided to the Administrative Agent under this Section 5.07. If any financial materials and related certificates required to be delivered pursuant to Sections 5.07(a), (c) and/or (d) shall be required to be delivered pursuant to the terms of such Section(s) on a day that is not a Business Day, the required date for such delivery shall be extended to the next succeeding Business Day.
Appears in 2 contracts
Samples: Credit Agreement (Fiserv Inc), Credit Agreement (Fiserv Inc)
Financial Statements and Other Information. The Borrower will deliver furnish to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days promptly after the end of each Fiscal Year becoming aware of the Borrowerexistence of any Default or Event of Default, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet an Officer's Certificate of the Borrower specifying the nature and its Subsidiaries as period of the end of such Fiscal Year existence thereof and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of what action the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, LLP is taking or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as proposes to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance take with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standardsrespect thereto;
(b) as soon as available and in promptly after becoming aware of any Material Adverse Effect, or of any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrowerwhich could reasonably be expected to have a Material Adverse Effect, an unaudited consolidated balance sheet Officer's Certificate of the Borrower and its Subsidiaries as of setting forth the end details of such Fiscal Quarter Material Adverse Effect or event and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the stating what action which the Borrower has taken or proposes to take with respect thereto; and
(c) if at any time the Borrower ceases making filings under the Securities Xxxxxxxx Xxx 0000:
(i) promptly when available and in any event within 120 days after the close of each of its fiscal years, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity a copy of the Subsidiaries annual audit report of the Borrower for such fiscal year, including therein a balance sheet of the Borrower as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent fiscal year and the Lenders on the Closing Date or as statements of the most recent Fiscal Year or Fiscal Quarter, as the case may be, earnings and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements cash flows of the Borrower for such fiscal year reported on without a "going concern" exception, or a qualification arising out of the scope of the audit, by independent auditors of recognized standing selected by the Borrower and its Subsidiaries, reasonably acceptable to the Lender; and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(dii) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as promptly when available and in any event within 60 (a) 45 days after the end of each Fiscal Year of the Borrowerfiscal quarter, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management balance sheet of the Borrower as of the end of such fiscal quarter, together with statements of earnings and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following fiscal quarter and for the written request period beginning with the first day of such fiscal year and ending on the Administrative Agentlast day of such fiscal quarter, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, together with an Officer's Certificate confirming that such other information regarding the results of operations, business affairs and financial position of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably requeststatements were prepared in accordance with GAAP.
Appears in 2 contracts
Samples: Credit Agreement (Pro Fac Cooperative Inc), Credit Agreement (Agrilink Foods Inc)
Financial Statements and Other Information. The Borrower will deliver furnish to the Administrative Agent and each Lender:(for further distribution by the Administrative Agent to the Lenders):
(a) commencing with the fiscal year ending December 31, 2019, as soon as available and available, but in any event within 90 120 days after the end of each Fiscal Year fiscal year of the BorrowerBorrower (or, a copy in the case of the annual fiscal year ending December 31, 2019, 150 days), the audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of at the end of such Fiscal Year fiscal year, and the related audited consolidated statements of operations and consolidated statements of comprehensive income, stockholdersconsolidated statements of changes in members’ equity and consolidated audited statements of cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, and related notes and related explanations thereto, setting forth in each case (other than the fiscal year ended December 31, 2019 (with respect to which for the avoidance of doubt, no comparative consolidated figures or reconciliation will be required)) in comparative form form, the figures for the previous Fiscal Yearpreceding fiscal year, all in reasonable detail and reported on by BDO USA, Ernst & Young LLP or other independent public accountants of nationally recognized standing (national standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, without a qualification as to going concern as defined by Statement on Accounting Standards AU-C Section 570 “going concernThe Auditor’s Consideration of an Entity’s Ability to Continue as a Going Concern” (or like qualification, exception any similar statement under any amended or explanation and without any qualification successor rule as may be adopted by the Auditing Standards Board from time to time) or exception as to the scope of the audit (other than, in each such auditcase, (1) solely with respect to, or expressly resulting solely from, an upcoming maturity date within twelve (12) months under the documentation governing any Indebtedness, (2) the activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiaries or (3) any prospective breach of the Financial Maintenance Covenant), to the effect that such consolidated financial statements present fairly in all material respects the consolidated financial position and consolidated results of operations and cash flows of the Borrower and its consolidated Subsidiaries as of the end of and for such year on a consolidated basis in accordance with GAAP consistently applied;
(b) commencing with the fiscal quarter ended September 30, 2019, as soon as available, but in any event within 45 days after the end of each fiscal quarter of each fiscal year of the Borrower (or, in the case of the fiscal quarters ending September 30, 2019, December 31, 2019, March 31, 2020, June 30, 2020 and September 30, 2020, 60 days), the unaudited consolidated balance sheet of the Borrower as at the end of such fiscal quarter and the related unaudited consolidated statements of operations and unaudited consolidated statements of comprehensive income, unaudited consolidated statements of changes in members’ equity and consolidated unaudited statements of cash flows for such fiscal quarter and for the elapsed portion of the fiscal year ended with the last day of such fiscal quarter, and the related unaudited consolidated statement of cash flow for the portion of the fiscal year ended with the last day of such fiscal quarter, and setting forth in each case (other than for the quarterly periods ending September 30, 2019, December 31, 2019, March 31, 2020, June 30, 2020 and September 30, 2020 (with respect to which for the avoidance of doubt, no comparative consolidated figures or reconciliation will be required)) in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheets, as of the end of) the previous fiscal year, all certified by a Financial Officer as presenting fairly in all material respects the consolidated financial position and consolidated results of operations and cash flows of the Borrower and its consolidated Subsidiaries as of the end of and for such fiscal quarter (except in the case of cash flows) and such portion of the fiscal year on a consolidated basis in accordance with GAAP consistently applied, subject to changes resulting from audit and normal year-end audit adjustments and to the absence of footnotes;
(c) for any period in which a Subsidiary has been designated as an Unrestricted Subsidiary, simultaneously with the delivery of the financial statements referred to in clauses (a) and (b) above for such period, supplemental financial information necessary to eliminate the accounts of Unrestricted Subsidiaries from such consolidated financial statements;
(d) not later than five Business Days after any delivery of financial statements under clause (a) or (b) above (excluding, in the case of clause (b) above, with respect to the fourth fiscal quarter of any year), a Compliance Certificate of a Financial Officer (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 6.13 for such Test Period, (iii) setting forth reasonably detailed calculations in the case of financial statements delivered under clause (a) above, beginning with the financial statements for the fiscal year of the Borrower ending December 31, 2020, of Excess Cash Flow for such fiscal year and (iv) in the case of financial statements delivered under clause (a) above, setting forth a reasonably detailed calculation of the Net Proceeds received during the applicable period by or on behalf of the Borrower or any Subsidiary in respect of any Disposition/Casualty Prepayment Event and the portion of such Net Proceeds that has been invested or is intended to be reinvested in accordance with the first proviso in Section 2.11(c);
(e) not later than five Business Days after any delivery of financial statements under clause (a) or (b) above (other than under clause (b) above, in respect of the fourth fiscal quarter of any year), a narrative discussion and analysis of the financial condition and results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by fiscal quarter or such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly periodfiscal year;
(f) as soon as available and in any event within 60 not later than 120 days after the end commencement of each Fiscal Year fiscal year of the BorrowerBorrower (or, in the case of the first fiscal year following the Effective Date, 150 days) occurring prior to an IPO, a 12 month detailed consolidated budget for the Borrower and its Subsidiaries for the current Fiscal Year such fiscal year in a form customarily prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal YearBorrower;
(g) promptly following after the written request same become publicly available, copies of any annual, quarterly and other regular, material periodic and special reports (including on Form 10-K, 10-Q or 8-K) and registration statements which Holdings, the Borrower or any Restricted Subsidiary files with the SEC or any analogous Governmental Authority in any relevant jurisdiction (other than amendments to any registration statement (to the extent such registration statement, in the form it becomes effective, is delivered to the Administrative AgentAgent for further delivery to the Lenders), a list of all Persons purchasing Hydrocarbons from exhibits to any Loan Partyregistration statement and, if applicable, any registration statements on Form S-8 and other than any filing filed confidentiality with the SEC or any analogous Governmental Authority in any relevant jurisdiction); and
(h) promptly following any request therefor, such other information (which may be in the form of an officer’s certificate) regarding the results of operations, business affairs and financial position condition of the Borrower or any Restricted 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 request in writing; provided that none of the Borrower or any of its Restricted Subsidiaries as will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that (i) 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 law or any binding confidentiality agreement or (iii) is subject to attorney-client or similar privilege or constitutes attorney work product. Notwithstanding the foregoing, the obligations in clauses (a) and (b) of this Section 5.01 may reasonably be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower (or another Parent Entity) filed with the SEC or (B) the applicable financial statements of the Borrower (or any Parent Entity of the Borrower); provided that to the extent such information relates to a Parent Entity, 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 Entity and its consolidated subsidiaries, on the one hand, and the information relating to the Borrower and its consolidated Subsidiaries on a stand-alone basis, on the other hand, and to the extent such information is in lieu of information required to be provided under Section 5.01(a), such materials are accompanied by a report and opinion of Ernst & Young 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, without any qualification related to going concern as defined by Statement on Accounting Standards AU-C Section 570 “The Auditor’s Consideration of an Entity’s Ability to Continue as a Going Concern” (or any similar statement under any amended or successor rule as may be adopted by the Auditing Standards Board from time to time) or as to the scope of the audit (other than (1) solely with respect to, or expressly resulting solely from, an upcoming maturity date within twelve (12) months under the documentation governing any Indebtedness, (2) the activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiaries or (3) any prospective breach of the Financial Maintenance Covenant). 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 earlier of the date (A) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s or one of its Affiliates’ website on the Internet or (B) on which such documents are posted on the Borrower’s behalf on Syndtrak or another 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 such documents to the Administrative Agent upon its reasonable request until a written notice to cease delivering such documents is given by the Administrative Agent and (ii) the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and upon its reasonable request, provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or maintain paper copies of the documents referred to above, and each Lender shall be solely responsible for timely accessing posted documents and maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Joint Bookrunners will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Company Materials”) by posting the Company Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material nonpublic information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that it will, upon the Administrative Agent’s reasonable request, use commercially reasonable efforts to identify that portion of the Company Materials that may be distributed to the Public Lenders and that (i) all such Company Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (ii) by marking Company Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Joint Bookrunners and the Lenders to treat such Company Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its respective Affiliates or its and their respective securities for purposes of United States federal and state securities laws (provided, however, that to the extent such Company Materials constitute Information, they shall be treated as set forth in Section 9.12); (iii) all Company Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and (iv) the Administrative Agent and the Joint Bookrunners shall be entitled to treat any Company Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding anything to the contrary in this Article V, and for the avoidance of doubt, anything disclosed, examined inspected or otherwise made available pursuant to this Article V shall be subject to the provisions of Section 9.12.
Appears in 2 contracts
Samples: Credit Agreement (GoHealth, Inc.), Incremental Facility Agreement (GoHealth, Inc.)
Financial Statements and Other Information. The Borrower Obligors will deliver furnish to the Administrative Agent and (for delivery to each Lender:):
(a) as soon as available and in any event within 90 120 days after the end of each Fiscal Year fiscal year of the BorrowerObligors, a copy of the annual audited report for such Fiscal Year for the Borrower combined and its Subsidiaries, containing a consolidated balance sheet and related statements of operations, changes in members’ equity and partners’ capital and cash flows of the Borrower Obligors and its their Consolidated Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearyear, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USA, Ernst & Young LLP or other independent public accountants of nationally recognized national standing (without a “going concern” or like qualification, qualification or exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower Obligors and its their Consolidated Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and consistently applied (it being agreed that at any time following a Qualified IPO Date, the examination information required by this paragraph (a) may be furnished in the form of a Form 10-K to the extent such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standardsForm 10-K satisfies the requirements of this paragraph (a));
(b) as soon as available and in any event within 45 60 days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the BorrowerObligors, an unaudited the combined and consolidated balance sheet and related statements of operations, changes in members’ equity and partners’ capital and cash flows of the Borrower Obligors and its their Consolidated Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andthe fiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter period or periods of the previous fiscal year (or, in the case of the balance sheet, for the most recently ended fiscal year), all certified by a Responsible Officer of the Obligors as presenting fairly in all material respects the financial condition and results of operations of the Obligors and their Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the corresponding portion absence of footnotes (it being agreed that at any time following a Qualified IPO Date, the Borrower’s previous Fiscal Yearinformation required by this paragraph (b) may be furnished in the form of a Form 10-Q to the extent such Form 10-Q satisfies the requirements of this paragraph (b));
(c) concurrently with the any delivery of the financial statements referred to in subsections under clause (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection or (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of a Responsible Officer on behalf of the Borrower Obligors (i) certifying (to the knowledge of such Responsible Officer) as to whether there exists and is continuing a Default or Event of Default on the date of such certificate has occurred and, if such a Default or an Event of Default then existshas occurred, specifying the details thereof and the any action which the Borrower has taken or proposes proposed to take be taken with respect thereto, (ii) setting forth in reasonable detail reasonably detailed calculations demonstrating compliance with the financial covenants set forth in Article VICollateral Maintenance Test, Section 7.09 and paragraphs (a), (iiib) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (ivc) of Section 7.12 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower referred to in Section 4.04 and its Subsidiaries, has resulted in a change to such financial statements and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently with the any delivery of financial statements under clause (b) of this Section that are substantially different in form from the financial statements referred previously delivered pursuant to in subsection clause (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of a Responsible Officer on behalf of the Borrower setting forth as of Obligors containing a recent datereasonably detailed reconciliation, a true and complete list of all Hedging Transactions prepared by management of the Loan PartiesObligors, of such delivered financial statements with the material terms thereof applicable previously delivered financial statements; provided that, no such reconciliation shall be required to the extent any difference in the form of the financial statements (including the type, term, effective date, termination date and notional amounts x) does not result in any changes to net income for such period than would otherwise be calculated therefor or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied (y) results primarily from newly adapted accounting standards under any credit support document, and the counterparty to each such agreementGAAP;
(e) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by such Obligor or any of its Subsidiaries with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the financial statements referred functions of said Commission, or with any national securities exchange, or distributed by such Obligor to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information its public shareholders generally as the Administrative Agent case may reasonably request with respect to the relevant quarterly periodbe;
(f) as soon as available and in to the extent any event of the following information or disclosure has changed since the immediately preceding Quarterly Date, within 60 days five Business Days after the end each Quarterly Date, a certificate certified by a Responsible Officer of each Fiscal Year of the Borrower, Obligors as true and correct (i) attaching a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management revised Schedule 4 of the Borrower Disclosure Schedules Statement and detailing the projected cash flows and capital expenditures Schedule 6 of the Borrower Disclosure Schedules Statement containing the information described in Sections 4.13(a) and its Subsidiaries for (c), which information shall be as of such current Fiscal YearQuarterly Date (which revised Schedule 4 of the Disclosure Schedules Statement and Schedule 6 of the Disclosure Schedules Statement shall be deemed to replace the previously delivered Schedule 4 of the Disclosure Schedules Statement and Schedule 6 of the Disclosure Schedules Statement); and (ii) listing any Deposit Account of the type described in clause (c) of the definition of “Excluded Collateral” in the Primary Security Agreement (without regard to the proviso thereof) that shall have been created during the fiscal quarter ending on such Quarterly Date, together with a revised Part B of Annex 2 to the Primary Security Agreement reflecting any such new Deposit Account (which revised Part B of Annex 2 shall be deemed to replace the previously delivered Part B of Annex 2);
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, such other financial information regarding the results of operations, business affairs and financial position condition of the Borrower such Obligor or any of its Subsidiaries Subsidiaries, or compliance with the terms of this Agreement and the other Loan Documents, as the Administrative Agent or any Lender may reasonably request, provided that such Obligor shall not be required to provide such information if such disclosure would, in the reasonable judgment of the Obligors, reasonably be expected to be a violation of any applicable Requirement of Law; and
(h) until the Qualified IPO Date has occurred, promptly after any delivery of a Partners’ Letter to the Global Partners, a copy of such Partners’ Letter.
Appears in 2 contracts
Samples: Credit Agreement (Carlyle Group L.P.), Credit Agreement (Carlyle Group L.P.)
Financial Statements and Other Information. The Borrower will deliver furnish to each Lender through the Administrative Agent and each LenderAgent:
(a) as soon as available and but in any event within 90 120 days after the end of each Fiscal Year fiscal year of the Borrower, a copy its audited consolidated statement of the annual audited report for such Fiscal Year for the Borrower financial position and its Subsidiariesrelated statements of earnings, containing a consolidated balance sheet of the Borrower changes in shareholders’ equity and its Subsidiaries cash flows as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearyear, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USA, Ernst & Young LLP or other independent public accountants of nationally recognized national standing (without a “going concern” or like qualification, qualification or exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial position and the position, results of operations and cash flows of the Borrower and its consolidated Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and GAAP; provided, however, that the examination by Borrower may deliver, in lieu of the foregoing, the annual report of the Borrower for such accountants in connection fiscal year on Form 10-K filed with such consolidated the SEC, but only so long as the financial statements has been made contained in accordance with generally accepted auditing standardssuch annual report on Form 10-K are substantially the same in content as the financial statements referred to in the preceding provisions of this paragraph (a);
(b) as soon as available and but in any event within 45 60 days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the Borrower, an unaudited its consolidated balance sheet statement of the Borrower financial position and its Subsidiaries related statements of earnings and cash flows as of the end of and for such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements then elapsed portion of income the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial position, results of operations and cash flows of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided, however, that the Borrower may deliver, in lieu of the foregoing, the quarterly report of the Borrower for such Fiscal Quarter and fiscal quarter on Form 10-Q filed with the then elapsed portion SEC, but only so long as the financial statements contained in such quarterly report on Form 10-Q are substantially the same in content as the financial statements referred to in the preceding provisions of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Yearthis paragraph (b);
(c) concurrently with the each delivery of the financial statements referred to in subsections under clause (a) and or (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of a Financial Officer of the Borrower (i) certifying as to whether there exists whether, to the best knowledge of such Financial Officer, a Default has occurred and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then existshas occurred and is continuing, specifying the details thereof and the any action which the Borrower has taken or proposes proposed to take be taken with respect thereto, (ii) setting forth in reasonable detail reasonably detailed calculations demonstrating compliance with the financial covenants set forth in Article VI, Section 6.05 and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, 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 Compliance Certificatecertificate;
(d) concurrently with the each delivery of the financial statements referred to in subsection under clause (ba) of this Sectionabove, a certificate letter signed by the principal executive officer or accounting firm that reported on such financial statements to the principal financial officer effect that, in the course of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions examination upon which their report for such fiscal year was based (but without any special or additional audit procedures for that purpose other than review of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumesprovisions of this Agreement), nothing came to their attention that caused them to believe that there were any Defaults or Events of Default involving accounting matters or, if such accountants became aware of any such Defaults or Events of Default, specifying the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreementnature thereof;
(e) concurrently promptly after the same become publicly available, copies of all periodic and other reports on Forms 8-K, 10-Q and 10-K and all proxy statements filed by the Borrower or any Subsidiary with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed SEC or any other documents distributed by the principal executive officer Borrower to its shareholders generally which contain the equivalent information to that contained in such Forms or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly periodproxy statements;
(f) as soon as available and in upon any event within 60 days after sale or other disposition of Shares by the end of each Fiscal Year of the BorrowerBorrower or any Subsidiary, a 12 month budget for certificate of a Financial Officer setting forth in reasonable detail the Borrower calculations required to determine the portion of such Shares which constitute Restricted Margin Stock, the portion of such Shares which constitute Unrestricted Margin Stock and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for Net Cash Proceeds attributable to each such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partyportion; and
(hg) promptly following any request therefor, such other information regarding the results of operations, business affairs operations and financial position condition of the Borrower or any Subsidiary, or compliance with the terms of its Subsidiaries this Agreement, as the Administrative Agent or any Lender may reasonably request. Information required to be delivered pursuant to this Section 5.01 shall be deemed to have been delivered to the Lenders on the date on which the Borrower provides written notice to the Lenders that such information has been posted on the Borrower’s website on the Internet at xxxx://xxx.xxx.xxx or is available on the website of the SEC at xxxx://xxx.xxx.xxx (to the extent such information has been posted or is available as described in such notice). Information required to be delivered pursuant to this Section 5.01 may also be delivered by electronic communication pursuant to procedures approved by the Administrative Agent pursuant to Section 9.01(b).
Appears in 2 contracts
Samples: 364 Day Revolving Credit Agreement (CSX Corp), Credit Agreement (CSX Corp)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year fiscal year and the related consolidated statements of income, stockholders’ ' equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USADeloitte & Touche, LLP or other independent public accountants of nationally recognized standing (without a “"going concern” " or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year fiscal year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements of income income, stockholders equity and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of Borrower's previous fiscal year, all certified by the Borrower’s previous Fiscal Yearchief financial officer, the controller or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of the Borrower a Responsible Officer, (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, VI and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Borrower's audited financial statements of the Borrower and its Subsidiaries, referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Default or Event of Default (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the financial statements referred to in subsection (b) of this Sectionsaid Commission, a certificate signed or with any national securities exchange, or distributed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Propertiesits shareholders generally, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent case may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partybe; and
(hf) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver Furnish or cause to be furnished to the Administrative Agent Agents, the Issuing Banks and each Lender:of the Lenders (except as otherwise explicitly provided in this Section 5.1):
(a) as As soon as available and available, but in any event within 90 ninety (90) days after the end of each Fiscal Year fiscal year of Holdings, (i) the Borroweraudited, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower Holdings and its Subsidiaries Consolidated Subsidiaries, in each case as of at the end of such Fiscal Year of, and the related consolidated audited statements of incomeoperations, stockholders’ ' equity and cash flows for, such fiscal year (together with all footnotes thereto) including Segment Reporting), and the corresponding figures as at the end of, and for, the preceding fiscal year, accompanied by an opinion of the Borrower and its Subsidiaries for such Fiscal YearErnst & Young LLP, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, LLP or other independent public accountants accountant of nationally recognized national standing (without a “going concern” or like qualification, exception or explanation as shall be retained by Holdings and without any qualification or exception as be reasonably satisfactory to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made Required Lenders, which opinion shall be prepared in accordance with generally accepted auditing standardsstandards relating to reporting and which opinion shall contain no material exceptions or qualifications except for qualifications relating to accounting changes in response to FASB releases or other authoritative pronouncements; provided, however, that with respect to the report on the financial statements for the fiscal year ending December 31, 2002 only, such report may contain a going concern qualification; (ii) supplemental unaudited balance sheets and related unaudited statements of operations, stockholders' equity and cash flows as of the end of and for such fiscal year, setting forth in tabular form in each case the figures for the previous year for Holdings and the consolidating adjustments with respect thereto; (iii) segment reporting of EBITDA (setting forth in reasonable detail the calculation thereof) with respect to each business segment of Holdings and its Subsidiaries (which business segments shall be consistent with business segments reported on pursuant to clause (i) of this Section 5.1(a) or shall be otherwise agreed to by the Administrative Agent in writing (such agreement not to be unreasonably withheld)); and (iv) a comparison of actual financial performance (as set forth on the income statement) of Holdings and its Consolidated Subsidiaries, for such year to the projected financial performance of Holdings and its Consolidated Subsidiaries for such year, as set forth in the budget delivered to the Administrative Agent and the Lenders (pursuant to Section 5.1(g) hereof in the case of any fiscal year after 2002), together with an explanation of any material variances;
(b) as As soon as available and available, but in any event within 45 forty-five (45) days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year of the Borrowerfiscal years of Holdings, an unaudited (i) the unaudited, consolidated balance sheet of the Borrower Holdings and its Consolidated Subsidiaries as at the end of, and the related unaudited, consolidated statements of operations and cash flows for, such quarter, and for the portion of the fiscal year through the end of such quarter, and the corresponding figures as at the end of such quarter, and for the corresponding period, in the preceding fiscal year (including Segment Reporting), together with a certificate signed by a Financial Officer of Holdings, on behalf of Holdings, to the effect that such financial statements, while not examined by independent public accountants, reflect, in the opinion of Holdings, all adjustments necessary to present fairly in all material respects, the financial position of Holdings and its Consolidated Subsidiaries as at the end of the fiscal quarter and the results of operations for the quarter then ended in conformity with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of any footnote disclosure; (ii) supplemental unaudited balance sheets and related unaudited statements of operations and cash flows as of the end of and for such Fiscal Quarter fiscal quarter, setting forth in tabular form in each case the figures for the previous quarter for Holdings and the related unaudited consolidated statements consolidating adjustments with respect thereto; (iii) segment reporting of income and cash flows EBITDA (setting forth in reasonable detail the calculation thereof) with respect to each business segment of the Borrower Holdings and its Subsidiaries (which business segments shall be consistent with business segments reported pursuant to clause (i) of Section 5.1(a) or shall be otherwise agreed to by the Administrative Agent in writing (such agreement not to be unreasonably withheld)); and (iv) a comparison of actual financial performance (as set forth on the income statement) of Holdings and its Consolidated Subsidiaries for such Fiscal Quarter quarter and for the portion of the fiscal year through the end of such quarter, to the projected financial performance of Holdings and its Consolidated Subsidiaries for such quarter and for such portion of the year, respectively, as set forth in the applicable budget delivered to the Administrative Agent and the then elapsed portion Lenders (pursuant to Section 5.1(g) hereof in the case of such Fiscal Year and, commencing on December 31, 2017any fiscal year after 2002), together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion an explanation of the Borrower’s previous Fiscal Yearany material variances;
(c) concurrently Within twenty (20) Business Days after the end of each calendar month, (i) the unaudited, consolidated balance sheet of Holdings and its Consolidated Subsidiaries as at the end of, and the related unaudited, consolidated statements of operations and cash flows for, such month, and for the portion of the fiscal year of Holdings through the end of such month, together with a certificate signed by a Financial Officer of Holdings, on behalf of Holdings, to the effect that such financial statements, while not examined by independent public accounts, reflect, in the opinion of Holdings, all adjustments necessary to present fairly in all material respects, the financial position of Holdings and its Consolidated Subsidiaries as at the end of the calendar month and the results of operations for the month then ended in conformity with GAAP consistently applied, subject to normal year-end audit adjustments, quarter-end adjustments and the absence of any footnote disclosure; and (ii) a comparison of actual financial performance (as set forth on the income statement) of Holdings and its Consolidated Subsidiaries for such month and for the portion of fiscal year through the end of such month, to the projected financial performance of Holdings and its Consolidated Subsidiaries for such month and for such portion of the year, respectively, as set forth in the applicable budget to the Administrative Agent and the Lenders (delivered pursuant to Section 5.1(g) hereof in the case of any fiscal year after 2002), together with an explanation of any material variances;
(d) Simultaneously with the delivery of the financial statements referred to in subsections paragraphs (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)5.1, a Compliance Certificate signed by certificate of a Financial Officer of Holdings in form and substance reasonably satisfactory to the principal executive officer or the principal financial officer of the Borrower Administrative Agent (i) certifying as to stating whether there exists and is continuing or not such Financial Officer has knowledge, after due inquiry, of any condition or event which would constitute a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then existsso, specifying each such condition or event and the details nature thereof and the what action which the Borrower has taken any Loan Party is taking or proposes to take with respect thereto, (ii) setting forth demonstrating in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VIprovisions of Sections 6.8 through 6.11 hereof, and including the amount of Consolidated Capital Expenditures made pursuant to Section 6.8(a) hereof and those made pursuant to Section 6.8(b) hereof; and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of Holdings' and the mostly recently delivered Borrower's audited financial statements of the Borrower and its Subsidiaries, referred to in Section 3.6 hereof and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Wiltel Communications Group Inc)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 120 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ ' equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USAKPMG, LLP or other independent public accountants of nationally recognized standing (without a “"going concern” " or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated and consolidating basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s 's previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal chief executive officer, chief financial officer or the principal financial officer treasurer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance CertificateBorrower;
(d) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, and all annual financial reports which the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer Borrower files with FERC or the principal financial officer Department of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan PartyEnergy; and
(he) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Northern Border Pipeline Co)
Financial Statements and Other Information. The Borrower will deliver furnish to the Administrative Agent and for distribution to each Lender:
(a) as As soon as available and available, but in any event within in accordance with then-applicable Requirements of Law and not later than 90 days after the end close of each of its Fiscal Years (beginning with the Fiscal Year of the Borrowerending December 31, a copy of the annual 2022), audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet financial statements of the Borrower and its Subsidiaries for such Fiscal Year, including its consolidated balance sheet as of at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ changes in equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, all and prepared in reasonable detail accordance with GAAP and reported on accompanied by BDO USA, LLP or other an opinion of independent certified public accountants of nationally recognized standing (without a standing, which opinion shall not be subject to any “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such auditaudit (other than any such exception that is expressly with respect to, or expressly resulting from, (i) to the effect an upcoming maturity date under this Agreement or (ii) any prospective default or event of default in respect of Section 6.04) (it being understood and agreed that such financial statements present fairly in all material respects the financial position report and the results of operations of the Borrower opinion may include an explanatory note), and its Subsidiaries for which opinion shall state that such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made audit was conducted in accordance with generally accepted auditing standards;standards and said financial statements fairly present, in all material respects, the financial condition and results of operation of the Borrower and its consolidated Subsidiaries on a consolidated basis as at the end of, and for, such Fiscal Year in accordance with GAAP consistently applied.
(b) as As soon as available and available, but in any event within in accordance with then-applicable Requirements of Law and not later than 45 days after the end close of each of the first three Fiscal Quarters of each of its Fiscal Year of Years, commencing with the BorrowerFiscal Quarter ending March 31, an 2022, unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated financial statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter, including its consolidated unaudited balance sheets as at the end of such Fiscal Quarter and related consolidated unaudited statements of income, changes in equity and cash flows for such Fiscal Quarter and the then then-elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and period or periods of (or, in the corresponding portion case of the Borrower’s balance sheet, as of the end of) the previous Fiscal Year;, all certified by the Borrower executed on its behalf by the chief financial officer or chief accounting officer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis as at the end of, and for, the period covered thereby in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes.
(c) concurrently Simultaneously with the delivery of the each set of financial statements referred to in subsections (aSections 5.01(a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section5.01(b), a Compliance Certificate with respect to the fiscal period covered by such financial statements.
(d) Within five (5) Business Days after any Rating Agency shall have announced a change in such Rating Agency’s Index Debt Rating, written notice of such change in such Index Debt Rating.
(e) As soon as possible and in any event within ten (10) Business Days after the Borrower has Knowledge that any of the events or conditions specified below has occurred or exists with respect to any Plan or Multiemployer Plan that would reasonably be expected (individually or in the aggregate) to result in a Material Adverse Effect, notice of the same and a statement, signed by the principal executive officer Borrower executed on its behalf by a Financial Officer describing said event or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof condition and the action which the Borrower has taken or applicable member of the Controlled Group proposes to take with respect theretothereto (and a copy of any report or notice required to be filed with or given to the PBGC by the Borrower or applicable member of the Controlled Group with respect to such event or condition):
(i) the occurrence of any Reportable Event, or any waiver shall be requested under Section 412(c) of the Code with respect to any Plan;
(ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying receipt by the Borrower or any change in the identity member of the Controlled Group from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan or the distribution under Section 4041(c) of ERISA of a notice of intent to terminate any Plan, or any action taken by the Borrower, any of its Subsidiaries as or any member of the end Controlled Group to terminate any Plan under Section 4041(c) of such Fiscal Year ERISA or Fiscal Quarter from the Borrower, any of its Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as any member of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether Controlled Group would reasonably be expected to incur any change in GAAP or the application thereof has occurred since the date liability under Title IV of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request ERISA with respect to the relevant quarterly periodtermination of any Plan;
(iii) the institution by PBGC of proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the Borrower, any of its Subsidiaries or any member of the Controlled Group of a notice from any Multiemployer Plan that such action has been taken by PBGC with respect to such Multiemployer Plan;
(iv) the complete or partial withdrawal from a Multiemployer Plan by the Borrower, any of its Subsidiaries or any member of the Controlled Group that would reasonably be expected to result in liability of the Borrower, any of its Subsidiaries or such Controlled Group member under Title IV of ERISA (including the obligation to satisfy secondary liability as a result of a purchaser default), or the receipt by the Borrower, any of its Subsidiaries or any member of the Controlled Group of a notice from a Multiemployer Plan that it is in insolvency pursuant to Section 4245 of ERISA or that it intends to terminate or has terminated under Section 4041A of ERISA;
(v) the receipt by the Borrower, any of its Subsidiaries or any member of the Controlled Group of any notice or the receipt by any Multiemployer Plan from the Borrower, any of its Subsidiaries or any member of the Controlled Group of any notice concerning the imposition of any liability arising from a complete or partial withdrawal from a Multiemployer Plan or a determination that a Multiemployer Plan is, or would reasonably be expected to be, insolvent or in endangered, critical or critical and declining status;
(vi) the institution of a proceeding by a fiduciary of any Multiemployer Plan against the Borrower, any of its Subsidiaries or any member of the Controlled Group to enforce Section 515 of ERISA, which proceeding is not dismissed within 30 days; or
(vii) the adoption of an amendment to any Plan that would result in the loss of tax exempt status of the trust of which such Plan is a part if the Borrower, any of its Subsidiaries or any member of the Controlled Group fails to timely provide security to the Plan in accordance with the provisions of Section 436 of the Code and Section 206 of ERISA.
(f) as soon as available and in any event within 60 days after Promptly upon the end of each Fiscal Year of the Borrowerfiling thereof, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list copies of all Persons purchasing Hydrocarbons from registration statements (other than Form S-8 or any Loan Party; and
similar form) and annual (h) promptly following other than Form 11-K or any request thereforsimilar form), such quarterly, monthly or other information regarding the results of operations, business affairs and financial position of regular reports which the Borrower or any of its Subsidiaries files with the SEC, in each case to the extent not otherwise required to be delivered under this Agreement.
(g) Promptly upon the furnishing thereof to all shareholders of the Borrower generally, copies of all financial statements, reports and proxy statements so furnished, in each case to the extent not otherwise required to be delivered under this Agreement.
(h) Promptly upon receipt thereof, one copy of each written audit report submitted to the Borrower or any Subsidiary by independent accountants resulting from (i) any annual or interim audit submitted after the occurrence and during the continuance of a Default or Event of Default and (ii) any special audit submitted at any time, in each case, made by them of the books of the Borrower or any Subsidiary.
(i) Promptly, and in any event within five (5) Business Days, after an Authorized Officer obtains Knowledge thereof, notice of the occurrence of a Default or Event of Default, specifying the nature thereof and what action the Borrower proposes to take with respect thereto.
(j) Promptly, and in any event within ten (10) Business Days, after an Authorized Officer obtains Knowledge thereof, (i) the pendency or commencement of any litigation, arbitration or governmental proceeding against the Borrower or any Subsidiary which, in the opinion of the Borrower’s management, if adversely determined, would have or would reasonably be expected to have a Material Adverse Effect and (ii) the institution of any proceeding against any Loan Party or any of its Subsidiaries with respect to, or the receipt of notice by such Person of potential liability or responsibility for violation or alleged violation of, any law, rule or regulation (including any Environmental Law) which would reasonably be expected to have a Material Adverse Effect.
(k) Upon request of the Administrative Agent or any Lender, certificates of insurance coverage with respect to the insurance required by Section 5.04 or copies of the applicable policies.
(l) Promptly following any reasonable request therefor, (x) such other information (including nonfinancial information) as the Administrative Agent or any other Lender may from time to time 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. Documents or information required to be delivered or provided pursuant to Section 5.01(a), (b), (e), (f) and (g) (to the extent any such documents or information 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 the materials containing such documents or information, or provides a link thereto, on the Borrower’s website on the Internet; 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 has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available The Company shall deliver to each 5% Stockholder, and in any event within each of the Lyda Xxxxxx Xxxt Xxxst - Mary Xxxxxxxxxx, xxe Nelsxx Xxxxxx Xxxt Xxxst Estate - Trust B and the O'Brxxx Xxxmunity Property Trust (but not the transferees of such persons or entities unless such transferee is a 5% Stockholder):
(i) no later than 90 days after the end of each Fiscal Year fiscal year of the BorrowerCompany, a copy of beginning with the annual fiscal year ending December 31, 1999, (x) an audited report for such Fiscal Year for the Borrower consolidated and its Subsidiaries, containing a consolidated unaudited consolidating balance sheet of the Borrower Company and its Subsidiaries subsidiaries as of at the end of such Fiscal Year year, and the related (y) audited consolidated and unaudited consolidating statements of income, stockholders’ ' equity and cash flows (together with all footnotes thereto) of the Borrower Company and its Subsidiaries subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Yearyear, all in reasonable detail and reported on stating in comparative form the figures as at the end of and for the previous fiscal year and budgeted figures for the fiscal year accompanied by BDO USA, LLP or other independent public accountants an opinion of an accounting firm of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as selected by the Company with respect to the scope of such audit) to the effect audited 3 consolidated statements, which opinion shall state that such financial statements present fairly in all material respects the financial position and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made accounting firm's audit was conducted in accordance with generally accepted accounting standards and, accordingly, included such tests of accounting records and such other auditing standardsprocedures as were considered necessary under the circumstances and which opinion shall not be subject to any qualification resulting from a limit on the scope of the examination of the financial statements or the underlying data or which could be eliminated by changes in the financial statements or the notes thereto or by the creation of or increase in a reserve or a decreased carrying value of assets. All such financial statements shall be complete and correct in all material respects and prepared in reasonable detail and in accordance with generally accepted accounting principles applied, except as stated therein, on a consistent basis throughout the periods reflected therein (except that such financial statements may omit footnotes and may be subject to normal year-end adjustments which are not, in the aggregate, material);
(bii) as soon as available and in any event within 45 no later than fifteen (15) days after the end of each of fiscal quarter, beginning with the first three Fiscal Quarters of each Fiscal Year of the Borrowerquarter ending December 31, 1999, (x) an unaudited consolidated and unaudited consolidating balance sheet of the Borrower Company and its Subsidiaries subsidiaries as of at the end of such Fiscal Quarter and the related quarter, (y) unaudited consolidated and unaudited consolidating statements of income income, stockholders' equity and cash flows of the Borrower Company and its Subsidiaries subsidiaries for such Fiscal Quarter quarter and the then elapsed portion of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
current year to date. (c) concurrently with the delivery Each of the financial statements referred to in subsections the preceding clauses (ax) and (by) of this Section (other than the financial statements shall be for such fiscal quarter and for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)elapsed period in such fiscal year, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth all in reasonable detail calculations demonstrating compliance with and shall state in comparative form the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries figures as of the end of such Fiscal Year or Fiscal Quarter from and for the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as comparable periods of the most recent Fiscal Year or Fiscal Quarterpreceding fiscal year and budgeted figures for the period.) All such financial statements shall be complete and correct in all material respects, as shall be prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the case periods reflected therein (except that such financial statements may beomit footnotes and may be subject to normal year-end adjustments which are not, in the aggregate, material), and (ivz) stating whether any change in GAAP or the application thereof has occurred since the date a one-page management summary of operations for such quarter; and shall be accompanied by a certificate of the mostly recently delivered audited financial statements Chief Executive Officer or Chief Financial Officer of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of Company to such change on the financial statements accompanying such Compliance Certificateeffect;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(fiii) as soon as available and available, but in any event within 60 no less than thirty (30) days prior to the commencement of each new fiscal year, a detailed monthly budget and strategic plan for such fiscal year;
(iv) prior to the commencement of each new fiscal year, projected financial statements for the following two (2) years in the same format as the financial statements described in Section 2.2(a)(ii);
(v) no later than fifteen (15) days after the end of each Fiscal Year month, beginning with the month ending October 31, 1999, copies of all reports distributed to executive management with respect to key operating statistics and other related information; provided, however, that the BorrowerCompany shall not be obligated under this Section 2.2(a)(v) to provide information which it deems in good faith to be a trade secret; 4
(vi) no later than ten (10) business days after receipt, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared copies of all correspondence, notices, pleadings, subpoenas, or other forms of notification received by the management Company from any governmental department, agency, court or the National Association of Securities Dealers, Inc. (except documents received in the Borrower and detailing the projected cash flows and capital expenditures ordinary course of the Borrower and its Subsidiaries for such current Fiscal Yearbusiness);
(gvii) promptly following no later than ten (10) business days after filing, copies of all responses, pleadings or documents filed with any governmental department, agency or court (except documents filed in the ordinary course of business);
(viii) no later than ten (10) business days after filing, copies of all pleadings and other documents related to any material lawsuits filed by or against the Company or, to the extent known by the Company, written request notice by the Company of the Administrative Agentnature and extent of such action;
(ix) no later than ten (10) business days after receipt, copies of all management letters from accountants and notifications received by the Company relating to defaults, alleged or actual, of any provisions of any material loans or leases or other material agreements to which the Company is a party;
(x) promptly, but in any event within ten (10) business days, after any distribution to its stockholders generally or to specific stockholders by agreement, to its directors, to prospective investors or to the financial community of an annual report, proxy statement, registration statement or other similar report or communication, a copy of each such report, proxy statement, registration statement or other similar report or communication; and promptly, but in any event within five (5) business days after release, copies of all press releases and other statements made available generally by the Company or any of its subsidiaries to the public concerning material developments;
(xi) within sixty (60) days after the end of each fiscal year, a list of all Persons purchasing Hydrocarbons from stockholders and other security holders of the Company, showing the authorized and outstanding shares by class (including the common stock equivalents of any Loan Party; andconvertible security), the holdings of each stockholder (both before giving effect to dilution and on a fully-diluted basis) and the holdings of each person who holds options, warrants or convertible securities (both before giving effect to dilution and on a fully diluted basis);
(hxii) promptly following within sixty (60) days after the end of each fiscal year, and in addition to the information deliverable pursuant to paragraph (xi) above: copies of all stock option plans adopted in such fiscal year, and a list detailing all options granted, issued, exercised or lapsed; all warrants granted, issued (whether to directors, in connection with financings or otherwise), exercised or lapsed; and all stock issued or sold (including in each case, without limitation, all option and warrant exercise prices, stock issuance prices, and other terms) by the Company during such fiscal year; 5
(xiii) promptly, but in any request thereforevent not later than ten (10) business days after execution (or in the case of an oral agreement, such other information regarding after a definitive agreement or arrangement has been entered into), copies of any agreement (or, in the results case of operationsan oral agreement, business affairs and financial position of a summary thereof) entered into by the Borrower Company or any of its Subsidiaries subsidiaries, with any Related Person (as defined below). As used herein, the Administrative Agent term "Related Person" shall mean (i) any stockholder, partner, director, officer or employee of the Company or any Lender may reasonably request.affiliate or relative, or affiliate of a relative, of any of the foregoing, or (ii) any affiliate of the Company; and
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each LenderAgent:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated and consolidating basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided, that to the extent that any Special Purpose Subsidiary has entered into a financing transaction, securitization or other monetization transaction and is treated as a consolidated entity and reflected on the consolidated balance sheet of the Borrower and its Subsidiaries, concurrently with the delivery of the financial statements referred to in this paragraph (a), the Borrower shall provide to the Administrative Agent a balance sheet for each such Special Purpose Subsidiary as of the end of such Fiscal Year and the related statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of such Special Purpose Subsidiary for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year, all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided, that to the extent that any Special Purpose Subsidiary has entered into a financing transaction, securitization or other monetization transaction and is treated as a consolidated entity and reflected on the consolidated balance sheet of the Borrower and its Subsidiaries, concurrently with the delivery of the financial statements referred to in this paragraph (b), the Borrower shall provide to the Administrative Agent a balance sheet for each such Special Purpose Subsidiary as of the end of such Fiscal Quarter and the related statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of such Special Purpose Subsidiary for such Fiscal Quarter, setting forth in each case in comparative form the figures for the previous Fiscal Quarter;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance CertificateBorrower;
(d) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Default or Event of Default (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) as soon as available and in any event not later than the tenth day of each calendar month, a Borrowing Base Certificate as of the last day of the preceding month, and as soon as available, a monthly brokerage statement for each securities or deposit account held by Borrower or any Subsidiary;
(f) promptly but no later than five Business Days after the Borrower shall at any time have knowledge that there is a Borrowing Base Deficiency, a Borrowing Base Certificate as at that date the Borrower has knowledge of such Borrowing Base Deficiency indicating the amount of the Borrowing Base Deficiency as at the date the Borrower obtained knowledge of such deficiency and the amount of the Borrowing Base Deficiency as of the date which is two Business Days prior to the date the Borrowing Base Certificate is delivered pursuant to this paragraph;
(g) concurrently with the delivery of the financial statements referred to in subsection clauses (a) and (b) of this Sectionabove, beginning with the Fiscal Quarter ended August 31, 2007, a certificate signed by the principal executive officer or the principal financial officer valuation report of the Borrower setting forth information as to quantities or production from the Loan PartiesBorrower’s and its Subsidiaries’ proved Oil loan and Gas Propertiessecurities portfolio, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly periodconducted by an Approved Third Party Appraiser;
(fh) as soon as available and in any event within 60 days promptly after the end same become publicly available, copies of each Fiscal Year all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the Borrowersaid Commission, a 12 month budget for or with any national securities exchange, or distributed by the Borrower and to its Subsidiaries for shareholders generally, as the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Yearcase may be;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(hi) promptly following any request therefor, such other information regarding the results of operations, business affairs affairs, financial condition and financial position loan and securities portfolio of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Kayne Anderson Energy Development Co)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 120 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USAKPMG, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated and consolidating basis in accordance with GAAP and that the examination examination by such accountants in connection with such consolidated consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available available and in any event within 45 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance CertificateResponsible Officer;
(d) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, and all annual financial reports which the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer Borrower files with FERC or the principal financial officer Department of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan PartyEnergy; and
(he) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
: (a) as soon as available and in any event within 90 days after the end of each Fiscal Year fiscal year of the BorrowerParent, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower Parent and its Subsidiaries, containing (i) a consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated and consolidating statements of income, stockholdersof changes in shareholders’ equity and of cash flows (together with all footnotes thereto), and (ii) a condensed balance sheet of the Borrower Parent only and its Subsidiaries for such Fiscal Yearthe related condensed statements of income and of cash flows, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USA, Ernst & Young LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year cash flows on a consolidated and consolidating basis of the Parent for such fiscal year in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
; provided, that the requirements set forth in this clause (a), other than the certification of the Parent’s certified public accountants set forth in clause (ii) above, may be fulfilled by providing to the Administrative Agent and the Lenders the report of the Parent to the Securities and Exchange Commission (or any successor thereto) on Form 10-K for the applicable fiscal year; (b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year fiscal year of the BorrowerParent, an unaudited consolidated balance sheet of the Borrower Parent and its Subsidiaries on a consolidated and consolidating basis and of the Parent on a stand alone basis as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower Parent and its Subsidiaries on a consolidated and consolidating basis and of the Parent on a stand alone basis, each for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the BorrowerParent’s previous Fiscal Year;
fiscal year, all certified by the chief financial officer or treasurer of the Parent as presenting fairly in all material respects the financial condition and results of operations of the Parent and its Subsidiaries on a consolidated and consolidating basis and of the Parent on a stand alone basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided, that the requirements set forth in this clause (b) with respect to the financial information of the Parent and its Subsidiaries on a consolidated and consolidating basis may be fulfilled by providing to the Administrative Agent and the Lenders the report of the Parent to the Securities and Exchange Commission (or any successor thereto) on Form 10-Q for the applicable fiscal quarter and with respect to the financial information of the Parent on a stand alone basis may be fulfilled by the delivery of the Parent’s FRY-9LP Report for such fiscal quarter; (c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) above, duly executed copies of this Section (other than the financial statements Parent’s then-current FR Y-9C Report and FR Y-9LP Report and duly executed copies the then-current Call Report for the fourth Fiscal Quarter Borrower; (d) promptly after the same become publicly available, copies of each Fiscal Year delivered pursuant all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to subsection (b) any or all functions of this Section)said Commission, a Compliance Certificate signed or with any national securities exchange, or distributed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as Parent to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarterits shareholders generally, as the case may be, and be (iv) stating whether any change in GAAP to the extent not otherwise required to be delivered to the Administrative Agent or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumesLenders hereunder), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
; (e) concurrently with the delivery promptly after receiving knowledge thereof, written notice of all material charges, material assessments, actions, suits and proceedings (as well as notice of the financial statements referred to outcome of any such charges, assessments, orders, actions, suits and proceedings) that are proposed or initiated by, or brought before, any court or Governmental Authority, in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request connection with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, other than ordinary course of business litigation or proceedings which, if adversely decided, could not reasonably be expected to have a 12 month budget for Material Adverse Effect; provided, however, that nothing in this Section shall require the Borrower to provide notice of such charges, assessments, actions, suits or proceedings to the extent that providing such notice would be prohibited by 12 C.F.R. § 350.9.; and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(hf) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.1(a) or (b) or Section 5.1(d) (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 or the Parent posts such documents or provides a link thereto on the Borrower’s or the Parent’s website on the internet at the website address set forth in Section 8.1 or (ii) on which such documents are posted on the Borrower’s behalf on an internet or intranet website, if any, to which the Administrative Agent and each Lender have access; provided, that (A) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender if so requested until a written notice is received by the Borrower from the Administrative Agent or such Lender to cease delivering paper copies and (B) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent and each Lender of the posting of any such documents and provide to the Administrative Agent and each Lender by electronic mail electronic versions (i.e. soft copies) of such documents.
Appears in 1 contract
Samples: Subordinated Term Loan Agreement
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 120 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USAKPMG, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated and consolidating basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance CertificateResponsible Officer;
(d) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, and all annual financial reports which the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer Borrower files with FERC or the principal financial officer Department of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan PartyEnergy; and
(he) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Northern Border Pipeline Co)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year fiscal year and the related consolidated statements of income, stockholders’ ' equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USAErnst & Young, LLP or other independent public accountants of nationally recognized standing (without a “"going concern” " or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year fiscal year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of Borrower's previous fiscal year, all certified by a Responsible Officer or treasurer of the Borrower’s previous Fiscal YearBorrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of the Borrower a Responsible Officer, (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, VI and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Borrower's audited financial statements of the Borrower and its Subsidiaries, referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Default or Event of Default (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the financial statements referred to in subsection (b) of this Sectionsaid Commission, a certificate signed or with any national securities exchange, or distributed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Propertiesits shareholders generally, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent case may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partybe; and
(hf) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (American Healthways Inc)
Financial Statements and Other Information. The Borrower will deliver furnish to the Administrative Agent and each Lender:
(a) as soon as available and available, but in any event within no later than the earlier of (x) 90 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of Borrower and (y) the annual audited report for such Fiscal Year date the financial statements for the Borrower and its SubsidiariesSubsidiaries referred to in clause (i) below are required to be filed with the Securities and Exchange Commission:
(i) consolidated and consolidating statements of income, containing a consolidated balance sheet retained earnings and cash flows of the Borrower and its Subsidiaries as (and, separately stated, of the end of Borrower and its Restricted Subsidiaries) for such Fiscal Year fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) consolidating balance sheets of the Borrower and its Subsidiaries for (and, separately stated, of the Borrower and its Restricted Subsidiaries) as at the end of such Fiscal Yearfiscal year, setting forth in each case in comparative form the corresponding consolidated and consolidating figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, LLP or other preceding fiscal year,
(ii) an opinion of independent certified public accountants of nationally recognized national standing (without a “"going concern” " or like qualification, qualification or exception or explanation and without any qualification or exception as to the scope of such audit) to the effect stating that such said consolidated financial statements referred to in the preceding clause (i) fairly present fairly in all material respects the consolidated financial position condition and the results of operations of the Borrower and its Subsidiaries for (and of the Borrower and its Restricted Subsidiaries, as the case may be) as at the end of, and for, such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made fiscal year in accordance with generally accepted auditing standardsaccounting principles, and a statement of such accountants to the effect that, in making the examination necessary for their opinion, nothing came to their attention that caused them to believe that the Borrower was not in compliance with Section 7.09, insofar as such Section relates to accounting matters, and
(iii) certifications of each of the chief executive officer and chief financial officer of the Borrower substantially similar in form and substance to the certifications required pursuant to Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002 (the "Xxxxxxxx-Xxxxx Act") and the applicable rules under the Exchange Act and otherwise in accordance with the requirements of the Xxxxxxxx-Xxxxx Act and the Exchange Act, including a certification that (A) said consolidated financial statements referred to in the preceding clause (i) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading, and (B) such consolidated financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries on a consolidated basis as of and for the periods presented in accordance with GAAP consistently applied;
(b) as soon as available and available, but in any event within 45 no later than the earlier of (x) 55 days after the end of each of the first three Fiscal Quarters of each Fiscal Year fiscal quarters of the Borrower, an unaudited consolidated balance sheet of Borrower and (y) the date the financial statements for the Borrower and its Subsidiaries as of referred to in clause (i) below are required to be filed with the end of such Fiscal Quarter Securities and the related unaudited Exchange Commission:
(i) consolidated and consolidating statements of income income, retained earnings and cash flows of the Borrower and its Subsidiaries (and, separately stated, of the Borrower and its Restricted Subsidiaries) for such Fiscal Quarter period and for the period from the beginning of the respective fiscal year to the end of such period, and the then elapsed portion related consolidated and consolidating balance sheets of the Borrower and its Subsidiaries (and, separately stated, of the Borrower and its Restricted Subsidiaries) as at the end of such Fiscal Year andperiod, commencing on December 31, 2017, together with setting forth in each case in comparative form the corresponding consolidated and consolidating figures for the corresponding Fiscal Quarter period in the preceding fiscal year (except that, in the case of balance sheets, such comparison shall be to the last day of the prior fiscal year),
(ii) certifications of each of the chief executive officer and chief financial officer of the Borrower substantially similar in form and substance to the certifications required pursuant to Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act and the corresponding portion applicable rules under the Exchange Act and otherwise in accordance with the requirements of the Borrower’s previous Fiscal YearXxxxxxxx-Xxxxx Act and the Exchange Act, including a certification that (A) said consolidated financial statements referred to in the preceding clause (i) do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading, and (B) such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries on a consolidated basis as of and for the periods presented in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the any delivery of the financial statements referred to in subsections under clause (a) and or (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of the Borrower a Financial Officer (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate has occurred and, if such a Default or an Event of Default then existshas occurred, specifying the details thereof and the any action which the Borrower has taken or proposes proposed to take be taken with respect thereto, (ii) setting forth in reasonable detail reasonably detailed calculations demonstrating compliance with the financial covenants set forth in Article VISection 7.06 and 7.09, (iii) specifying identifying in reasonable detail any change in Dividend Payments made by the identity Borrower or any of its Restricted Subsidiaries during the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified period covered by said financial statements to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, enable Holdings to pay Qualified Holdings Obligations and (iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, referred to in Section 4.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently with the any delivery of the financial statements referred to in subsection under clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth 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 Sections 7.01, 7.02, 7.03, 7.04, 7.05, 7.06, 7.07, 7.09 or 7.11 hereof (which certificate may be limited to the extent required by accounting rules or guidelines and in any event shall be limited to Defaults insofar as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumesthey may relate to accounting matters), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently promptly after the same become publicly available, copies of all registration statements, regular periodic reports and press releases filed by the Borrower or any Subsidiary with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the financial statements referred to in subsection (b) functions of this Sectionsaid Commission, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly periodany national securities exchange;
(f) as soon as available and in any event within 60 days after promptly upon the end of each Fiscal Year of mailing thereof to the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management shareholders of the Borrower and detailing generally or to the projected cash flows and capital expenditures holders of the Borrower and its Subsidiaries for such current Fiscal Year;
Senior Subordinated Notes, the New Senior Subordinated Notes or New Senior Notes (gor any Refunding Indebtedness) promptly following the written request of the Administrative Agentor Senior Secured Notes generally, a list copies of all Persons purchasing Hydrocarbons from any Loan Partyfinancial statements, reports and proxy statements so mailed; and
(hg) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any Subsidiary, or compliance with the terms of its Subsidiaries this Agreement, as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Ohio Logos Inc)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, Xxxxx Xxxxxxxx LLP or other independent public accountants of nationally regionally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination examination by such accountants in connection with such consolidated consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or and the principal chief financial officer or treasurer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance CertificateBorrower;
(d) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by (whether contained in the principal executive officer annual audit or the principal financial officer otherwise) of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent datetheir examination of such financial statements of any Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines); provided, a true and complete list however, that such accountants shall not be liable by reason of all Hedging Transactions any failure to obtain knowledge of any such Event of Default that would not be disclosed during the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreementcourse of their audit examination;
(e) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the financial statements referred to in subsection (b) of this Sectionsaid Commission, a certificate signed or with any national securities exchange, or distributed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Propertiesits shareholders generally, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent case may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partybe; and
(hf) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request. In the event that any financial statement delivered pursuant to Section 5.1(a) or (b) or any Compliance Certificate is shown to be inaccurate (regardless of whether this Agreement or any Revolving Commitment is in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then (i) the Borrower shall immediately deliver to the Administrative Agent a correct Compliance Certificate for such Applicable Period, (ii) the Applicable Margin shall be determined as if Level I of Schedule I was applicable for such Applicable Period, and (iii) the Borrower shall immediately pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the Administrative Agent to the Obligations. This Section 5.1 shall not limit the rights of the Administrative Agent or the Lenders with respect to Section 2.11(c) and ARTICLE VIII; provided, however, that the obligations of the Borrower under this paragraph shall cease to be effective after the date that is one year following the termination of this Agreement unless the Administrative Agent notifies the Borrower prior to the end of such one year period that the Borrower is obligated to pay additional amounts under clause (iii) immediately above.
Appears in 1 contract
Financial Statements and Other Information. The Borrower Sponsor will deliver to the Administrative Agent Servicer and each LenderParticipant:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year fiscal year of the BorrowerSponsor, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower Sponsor and its Subsidiaries, containing a consolidated and unaudited consolidating balance sheet of the Borrower Sponsor and its Subsidiaries as of the end of such Fiscal Year fiscal year and the related consolidated and unaudited consolidating statements of income, stockholders’ ' equity and cash flows (together with all footnotes thereto) of the Borrower Sponsor and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USA, LLP Ernst & Young or other independent public accountants of nationally recognized standing (without a “"going concern” " or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower Sponsor and its Subsidiaries for such Fiscal Year fiscal year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each fiscal quarter of each fiscal year of the first three Fiscal Quarters of each Fiscal Year of Sponsor (other than the Borrowerlast fiscal quarter), an unaudited consolidated and consolidating balance sheet of the Borrower Sponsor and its Subsidiaries as of the end of such Fiscal Quarter fiscal quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower Sponsor and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of Sponsor's previous fiscal year, all certified by the Borrower’s previous Fiscal Yearchief financial officer, treasurer or controller of the Sponsor as presenting fairly in all material respects the financial condition and results of operations of the Sponsor and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of the Borrower a Responsible Officer, (i) certifying as to whether there exists and is continuing a Default Credit Event or an Unmatured Credit Event of Default on the date of such certificate andcertificate, and if such a Default Credit Event or an Unmatured Credit Event of Default then exists, specifying the details thereof and the action which the Borrower Sponsor has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, VII and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Sponsor's audited financial statements of the Borrower and its Subsidiaries, referred to in Section 5.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Credit Event or Unmatured Credit Event (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the financial statements referred to in subsection (b) of this Sectionsaid Commission, a certificate signed or with any national securities exchange, or distributed by the principal executive officer or the principal financial officer of the Borrower setting forth information as Sponsor to quantities or production from the Loan Parties’ proved Oil and Gas Propertiesits shareholders generally, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent case may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partybe; and
(hf) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower Sponsor or any of its Subsidiaries Subsidiary as the Administrative Agent Servicer or any Lender Participant may reasonably request; and
(g) as soon as available and in any event within 30 days after the end of each fiscal year of the Sponsor, a forecasted income statement, balance sheet, and statement of cash flows for the following fiscal year.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, Xxxx & Associates LLP or other independent public accountants of nationally recognized standing reasonably acceptable to the Required Lenders (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(bi) for each Fiscal Quarter ending on or prior to December 31, 2012, as soon as available and in any event (x) within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower and (y) within 60 days after the end of the last Fiscal Quarter of each Fiscal Year of the Borrower and (ii) after December 31, 2012, as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, an unaudited consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (bb)(i) of this Section), a Compliance Certificate signed by the principal executive officer a Responsible Officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Event of Default in respect of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreementfinancial covenants set forth in Article VI;
(e) as soon as available and in any event within 45 days after the end of the calendar year (and, if the Borrower shall elect to more frequently deliver a budget to the First Lien Agent, concurrently with any such delivery to the First Lien Agent), forecasts and a pro forma budget for the succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow;
(f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(g) promptly, and in any event within 30 days after the end of each month, volumetric reports of the gas throughput with respect to the Pipeline Systems;
(h) concurrently with the delivery of the financial statements referred to in subsection (ba) above, a report supplementing Schedule 4.11, including an identification of all owned and leased Real Estate and Easements disposed of by any Loan Party during such six-month period, a list and description (including the street address, county or other relevant jurisdiction, state, record owner and, in the case of leases of property, lessor, lessee, expiration date and annual rental cost thereof) of this Sectionall Real Estate or Easements acquired or leased during such twelve-month period, and a certificate description of such other changes in the information included in such Schedules as may be necessary for such Schedules to be accurate and complete, such report to be signed by the principal executive officer or the principal financial officer a Responsible Officer of the Borrower setting forth information as and to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may be in a form reasonably request with respect satisfactory to the relevant quarterly periodRequired Lenders;
(fi) as soon as available concurrently with the delivery of the financial statements referred to in subsection (a) above, (i) a report of all new Material Agreements executed during such year and all Material Agreements that expired, terminated or were otherwise not renewed or extended (to the extent such Material Agreements would expire or terminate within 6 months of the date of such report if not renewed or extended) during such year, and (ii) a certificate of a Responsible Officer of the Borrower either confirming that there has been no change in the information since the date of the Perfection Certificate delivered on the Closing Date or the date of the most recent certificate delivered pursuant to this Section and/or identifying such changes;
(j) (i) promptly, and in any event within 60 30 days, following any request by PennantPark therefor, the information required to complete Small Business Administration Form 652 and Form 480 and (ii) for so long as PennantPark SBIC LP is a Lender, within ninety (90) days after the end request of each Fiscal Year of the BorrowerPennantPark SBIC LP, a 12 month budget for the Borrower shall provide to PennantPark SBIC LP (i) the information required to complete the Economic Data for Portfolio Concerns section of Small Business Administration Form 468 (attached hereto as Exhibit 5.1(j)) and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(gii) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partyholders (other than PennantPark SBIC LP) of the Loans; and
(hk) promptly any liquidity model delivered to the First Lien Agent, concurrently with any such delivery to the First Lien Agent; and
(l) promptly, and in any event within 30 days, following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Loan Parties as the Administrative Collateral Agent or any Lender may reasonably request. Notwithstanding anything to the contrary, no Loan Party shall be under any obligation to (and shall not) deliver material non-public information with respect to Magnum to any Public Lender, except in connection with an amendment, consent or waiver of a Loan Document as expressly permitted by Section 5.17.
Appears in 1 contract
Samples: Second Lien Term Loan Agreement (Magnum Hunter Resources Corp)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each LenderAgent:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like similar qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided, that to the extent that any Special Purpose Subsidiary or Foreclosed Subsidiary that is treated as a consolidated entity and reflected on the consolidated balance sheet of the Borrower and its Subsidiaries, concurrently with the delivery of the financial statements referred to in this paragraph (a), the Borrower shall provide to the Administrative Agent a balance sheet for each such Special Purpose Subsidiary and such Foreclosed Subsidiary as of the end of such Fiscal Year and the related statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of such Special Purpose Subsidiary and such Foreclosed Subsidiary for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year, all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided, that to the extent that any Special Purpose Subsidiary or any Foreclosed Subsidiary that is treated as a consolidated entity and reflected on the consolidated balance sheet of the Borrower and its Subsidiaries, concurrently with the delivery of the financial statements referred to in this paragraph (b), the Borrower shall provide to the Administrative Agent a balance sheet for each such Special Purpose Subsidiary and such Foreclosed Subsidiary as of the end of such Fiscal Quarter and the related statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of such Special Purpose Subsidiary and such Foreclosed Subsidiary for such Fiscal Quarter, setting forth in each case in comparative form the figures for the previous Fiscal Quarter;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance CertificateBorrower;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 90 days after the end of each Fiscal Year of Borrower beginning with the Fiscal Year ending December 31, 2005, a valuation report of the Borrower, a 12 month budget for the Borrower ’s and its Subsidiaries for Subsidiaries’ loan and securities portfolio, conducted by a third party appraiser reasonably acceptable to Administrative Agent and demonstrating compliance with the current Asset Coverage Ratio covenant set forth in Section 6.1;
(e) as soon as available and in any event within 45 days after the end of each Fiscal Year prepared by the management Quarter of the Borrower and detailing beginning with the projected cash flows and capital expenditures Fiscal Quarter ending March 31, 2006, an internally prepared valuation report of the Borrower Borrower’s and its Subsidiaries for Subsidiaries’ loan and securities portfolio, such current Fiscal Yearvaluation to be conducted in a manner and on a basis consistent with the principles used in the annual valuation report prepared pursuant to clause (e) above;
(f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any reasonable request therefor, such other information regarding the results of operations, business affairs affairs, financial condition and financial position loan and securities portfolio of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (NGP Capital Resources CO)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each LenderAgent:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like similar qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided, that to the extent that any Special Purpose Subsidiary or Foreclosed Subsidiary that is treated as a consolidated entity and reflected on the consolidated balance sheet of the Borrower and its Subsidiaries, concurrently with the delivery of the financial statements referred to in this paragraph (a), the Borrower shall provide to the Administrative Agent a balance sheet for each such Special Purpose Subsidiary and such Foreclosed Subsidiary as of the end of such Fiscal Year and the related statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of such Special Purpose Subsidiary and such Foreclosed Subsidiary for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year, all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided, that to the extent that any Special Purpose Subsidiary or any Foreclosed Subsidiary that is treated as a consolidated entity and reflected on the consolidated balance sheet of the Borrower and its Subsidiaries, concurrently with the delivery of the financial statements referred to in this paragraph (b), the Borrower shall provide to the Administrative Agent a balance sheet for each such Special Purpose Subsidiary and such Foreclosed Subsidiary as of the end of such Fiscal Quarter and the related statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of such Special Purpose Subsidiary and such Foreclosed Subsidiary for such Fiscal Quarter, setting forth in each case in comparative form the figures for the previous Fiscal Quarter;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower Borrower;
(id) certifying as to whether there exists and is continuing a Default on or Event before August 15 of Default on each year for the date Fiscal Quarter ended June 30 of such certificate andyear beginning with the Fiscal Quarter ended June 30, if 2007, upon the request of Agent, a valuation report of the Borrower’s and its Subsidiaries’ loan and securities portfolio, conducted by E3 Consulting or such a Default or an Event of Default then exists, specifying the details thereof other third party appraiser reasonably acceptable to Administrative Agent and the action which the Borrower has taken Required Lenders (such consent not to be unreasonably withheld or proposes to take with respect thereto, (iidelayed) setting forth in reasonable detail calculations and demonstrating compliance with the financial covenants Asset Coverage Ratio covenant set forth in Article VISection 6.1;
(e) promptly after the same become publicly available, (iii) specifying copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any change in Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified Borrower to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarterits shareholders generally, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any reasonable request therefor, such other information regarding the results of operations, business affairs affairs, financial condition and financial position loan and securities portfolio of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request; and
(g) a report of a Responsible Officer of the Net Asset Value of assets disposed of by the Borrower or its Subsidiaries (including loans repaid to the Borrower or its Subsidiaries) subsequent to the most recent public disclosures filed with the Securities and Exchange Commission, promptly following such disposition to the extent that the Net Asset Value of such assets (to the extent not previously reported) exceeds $10,000,000.
Appears in 1 contract
Samples: Revolving Credit Agreement (NGP Capital Resources CO)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year fiscal year and the related consolidated statements of income, stockholdersshareholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USAKPMG, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year fiscal year on a consolidated and consolidating basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Yearfiscal year, all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of the Borrower a Responsible Officer, (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may beVI including calculations demonstrating Borrower’s Minimum Timber Market Value for each month, and (iviii) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Borrower’s audited financial statements of the Borrower and its Subsidiaries, referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the financial statements referred to in subsection (b) of this Sectionsaid Commission, a certificate signed or with any national securities exchange, or distributed by the principal executive officer or Borrower to its shareholders generally, as the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreementcase may be;
(e) concurrently with promptly upon the delivery consummation of the financial statements referred to in subsection (b) any offering of this Section, a certificate signed by the principal executive officer common or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year preferred stock of the Borrower, a 12 month budget for notice thereof and the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management aggregate amount of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partyproceeds raised therefrom; and
(hf) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request. In the event that any financial statement delivered pursuant to clauses (a) or (b) immediately above or any Compliance Certificate is shown to be inaccurate (regardless of whether this Agreement or any Commitment is in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then (i) the Borrower shall immediately deliver to the Administrative Agent a corrected Compliance Certificate for such Applicable Period, (ii) the Applicable Margin for such Applicable Period shall be determined in accordance with the corrected Compliance Certificate, and (iii) the Borrower shall immediately pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the Administrative Agent to the Obligations. This Section 5.1 shall not limit the rights of the Administrative Agent or the Lenders with respect to Section 2.13(c) and Article VIII. Documents and notices required to be delivered pursuant to Section 5.01(a), (b), or (d), (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 notices, or provides a link thereto on the Borrower’s website on the Internet; or (ii) on which such documents or notices 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 or notices 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 telecopy or electronic mail) of the posting of any such documents. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents or notices 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 or notices.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 120 days after the end of each Fiscal Year of the Borrower, (i) a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, KPMG LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and (ii) unaudited consolidating balance sheets of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related unaudited consolidating statement of income and consolidating cash flows of the Borrower and its Subsidiaries for such Fiscal Year;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements statement of income and consolidated statement of cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or and the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance CertificateBorrower;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the BorrowerYear, a 12 month consolidated budget for and projection of the Borrower and its Subsidiaries for the current next succeeding Fiscal Year prepared Year, on a monthly basis;
(e) to the extent not filed on the Securities and Exchange Commission’s XXXXX (or any successor) filing system (“XXXXX”), promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the management Borrower to its shareholders generally, as the case may be;
(f) not less than ten days following such change, written notice of any change (i) in any Loan Party’s corporate name, (ii) in the jurisdiction of organization or formation of any Loan Party, (iii) in any Loan Party’s identity or form of organization or (iv) in any Loan Party’s Federal Taxpayer Identification Number. The Borrower also agrees promptly to notify the Administrative Agent if any material portion of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;Collateral is damaged or destroyed; and
(g) promptly following to the written request of the Administrative Agentextent not filed on XXXXX, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefortherefor by the Administrative Agent or any Lender and subject to applicable law and regulations, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (JTH Holding, Inc.)
Financial Statements and Other Information. The Borrower will deliver Furnish to the Administrative Agent and (for distribution to each Lender:Lender through the Administrative Agent):
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing (i) a consolidated balance sheet of the Borrower and its Subsidiaries as of at the end of such Fiscal Year fiscal year, and the related consolidated statements of income, stockholders’ equity retained earnings and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year of the Borrower, all in reasonable detail and reported on prepared in accordance with GAAP, audited and accompanied by BDO USA, LLP or other a report and opinion of an independent registered public accountants accounting firm of nationally recognized standing (without a 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, qualification or exception or explanation and without any qualification or exception as to the scope of such audit) , other than for financial controls on the Person or Persons acquired by the Borrower in the Acquisition or any Permitted Acquisition during the first year after consummation of the related transaction to the effect that such financial statements present fairly in all material respects extent permitted under Section 404 of Public Company Accounting Reform and Investor Protection Act of 2002 (also known as the financial position and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;Xxxxxxxx-Xxxxx Act).
(b) 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 fiscal year of the Borrower, an unaudited (commencing with the first full fiscal quarter ended after the Effective Date), a consolidated balance sheet of the Borrower and its Subsidiaries as of at the end of such Fiscal Quarter fiscal quarter, and the related unaudited consolidated statements of income income, retained earnings and cash flows for such fiscal quarter and for the portion of the fiscal year of the Borrower and its Subsidiaries for such Fiscal Quarter and then ended, setting forth in each case in comparative form the then elapsed portion of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter fiscal quarter of the previous fiscal year of the Borrower and the corresponding portion of the previous fiscal year the Borrower’s previous Fiscal Year;.
(c) concurrently as soon as available and in any event within 45 days after the end of each fiscal year of the Borrower, commencing with the delivery fiscal year of the financial Borrower ending December 31, 2013, an annual operating and capital budget of the Borrower and its Subsidiaries, prepared by management of the Borrower and in a form reasonably satisfactory to the Administrative Agent, including a projected consolidated balance sheet and consolidated statements referred to of projected comprehensive income and cash flows as of the end of and for such fiscal year and setting forth the material assumptions used for purposes of preparing such budget) on a quarterly basis for the fiscal year of the Borrower following such fiscal year. Notwithstanding the foregoing, the obligations in subsections paragraphs (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case 5.01 may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request be satisfied with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures financial information of the Borrower and its Subsidiaries for by furnishing or otherwise making available as provided in the next succeeding paragraph the Form 10-K or 10-Q (or the equivalent), as applicable, of the Borrower filed with the SEC; provided that to the extent such current Fiscal Year;
(g) promptly following the written request 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 an independent registered public accounting firm of nationally recognized standing acceptable to the Administrative Agent, a list 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 all Persons purchasing Hydrocarbons from any Loan Party; andsuch audit.
(h1) promptly following 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 (2) 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 thereforthe 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 other documents. The Borrower hereby acknowledges that (i) the Administrative Agent and/or the Lead Arrangers will make available to the Lenders and the Issuing Banks materials and/or information regarding the results of operations, business affairs and financial position 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 (ii) 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 (1) 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, (2) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Lead Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its Subsidiaries 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 9.15), (3) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”, and (4) the Administrative Agent or and the Lead Arrangers shall be entitled to treat any Lender may reasonably requestBorrower 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 xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Credit Agreement (Lmi Aerospace Inc)
Financial Statements and Other Information. The Borrower will deliver furnish to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year fiscal year of the Borrower:
(i) consolidated and consolidating statements of income, a copy of the annual audited report for such Fiscal Year for the Borrower retained earnings and its Subsidiaries, containing a consolidated balance sheet cash flows of the Borrower and its Subsidiaries as (and, separately stated, of the end of Borrower and its Restricted Subsidiaries) for such Fiscal Year fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) consolidating balance sheets of the Borrower and its Subsidiaries for (and, separately stated, of the Borrower and its Restricted Subsidiaries) as at the end of such Fiscal Yearfiscal year, setting forth in each case in comparative form the corresponding consolidated and consolidating figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, LLP or other preceding fiscal year,
(ii) an opinion of independent certified public accountants of nationally recognized national standing (without a “"going concern” " or like qualification, qualification or exception or explanation and without any qualification or exception as to the scope of such audit) to the effect stating that such said consolidated financial statements referred to in the preceding clause (i) fairly present fairly in all material respects the consolidated financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP (and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal QuarterRestricted Subsidiaries, as the case may be) as at the end of, and (iv) stating whether any change for, such fiscal year in GAAP or accordance with generally accepted accounting principles, and a statement of such accountants to the application thereof has occurred since effect that, in making the date of the mostly recently delivered audited financial statements of examination necessary for their opinion, nothing came to their attention that caused them to believe that the Borrower and its Subsidiarieswas not in compliance with Section 7.09, insofar as such Section relates to accounting matters, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(diii) concurrently with the delivery a certificate of the a Financial Officer stating that said consolidating financial statements referred to in subsection the preceding clause (bi) fairly present the respective individual unconsolidated financial condition and results of this Section, a certificate signed by the principal executive officer or the principal financial officer operations of the Borrower setting forth and of each of its Subsidiaries, in each case in accordance with generally accepted accounting principles, consistently applied, as of a recent date, a true and complete list of all Hedging Transactions of at the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support documentend of, and the counterparty to each for, such agreementfiscal year;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management first three quarterly fiscal periods of each fiscal year of the Borrower (other than the fiscal year ending December 31, 1996):
(i) consolidated and detailing the projected consolidating statements of income, retained earnings and cash flows and capital expenditures of the Borrower and its Subsidiaries (and, separately stated, of the Borrower and its Restricted Subsidiaries) for such current Fiscal Yearperiod and for the period from the beginning of the respective fiscal year to the end of such period, and the related consolidated and consolidating balance sheets of the Borrower and its Subsidiaries (and, separately stated, of the Borrower and its Restricted Subsidiaries) as at the end of such period, setting forth in each case in comparative form the corresponding consolidated and consolidating figures for the corresponding period in the preceding fiscal year (except that, in the case of balance sheets, such comparison shall be to the last day of the prior fiscal year),
(ii) a certificate of a Financial Officer, which certificate shall state that said consolidated financial statements referred to in the preceding clause (i) fairly present the consolidated financial condition and results of operations of the Borrower and its Subsidiaries (and of the Borrower and its Restricted Subsidiaries, as the case may be) and that said consolidating financial statements referred to in the preceding clause (i) fairly present the respective individual unconsolidated financial condition and results of operations of the Borrower and of each of its Subsidiaries, in each case in accordance with generally accepted accounting principles, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments);
(gc) concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.09 and (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 4.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(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 Amended and Restated Credit Agreement 71 - 66 - statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) promptly following after the written request same become publicly available, copies of all registration statements, regular periodic reports and press releases filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the Administrative Agentfunctions of said Commission, a list or with any national securities exchange;
(f) promptly upon the mailing thereof to the shareholders of the Borrower generally or to the holders of the Senior Subordinated Notes or the New Senior Subordinated Notes (or any Refunding Indebtedness) or Senior Secured Notes generally, copies of all Persons purchasing Hydrocarbons from any Loan Partyfinancial statements, reports and proxy statements so mailed; and
(hg) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any Subsidiary, or compliance with the terms of its Subsidiaries this Agreement, as the Administrative Agent or any Lender may reasonably request. In addition, the Borrower will arrange a meeting with the Lenders at a site reasonably convenient to the parties and acceptable to the Administrative Agent, at least once during each fiscal year (but in any event with a period of no more than fifteen months between meetings), at which the Borrower will report upon its financial condition, business and operations and have senior officers available to answer questions of the Lenders regarding such financial condition, business and operations.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower and its Subsidiaries, containing a consolidated balance sheet sheets of the Borrower and its Subsidiaries as of the end of such Fiscal Year fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USA, LLP KPMG L.L.P. or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year fiscal year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Yearfiscal year, all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by certificate of the principal executive chief financial officer or the principal financial officer of the Borrower treasurer, (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change setting forth whether the Borrower is in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, compliance with Section 5.11 and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Borrower’s most recent audited financial statements of the Borrower and its Subsidiaries, referred to in Section 4.4 or which have been previously delivered hereunder and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Default or Event of Default (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the financial statements referred to in subsection (b) of this Sectionsaid Commission, a certificate signed or with any national securities exchange, or distributed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Propertiesits shareholders generally, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent case may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partybe; and
(hf) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the Issuing Bank materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another 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 Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Bank and the Lenders to treat such Borrower Materials as either publicly available information or not material information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws; (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”
Appears in 1 contract
Financial Statements and Other Information. The Lead Borrower will deliver furnish to the Administrative Agent and Agents for delivery to the Lenders, each Lenderof the following, provided that the Lead Borrower need not furnish copies of information referred to in subsections (a), (b), (g) or (m) if on or before the applicable day set forth below, such information is available either on XXXXX or on the Lead Borrower's web site:
(a) as soon as available and in any event within 90 ninety-five (95) days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Lead Borrower and its Subsidiaries, a copy of its Form 10-K containing a consolidated the Consolidated balance sheet and related statements of the Borrower earnings, shareholders' equity and its Subsidiaries cash flows as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearyear, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail audited and reported on by BDO USAErnst & Young, LLP or other another independent public accountants accountant of nationally recognized national standing (without a “"going concern” " or like qualification, qualification or exception or explanation and without any a qualification or exception as to the scope of such audit) to the effect that such Consolidated financial statements present fairly in all material respects the financial position condition and the results of operations of the Lead Borrower and its Subsidiaries for such Fiscal Year on a consolidated Consolidated basis in accordance with GAAP consistently applied, and that the examination a written statement by such accountants to the effect that such accountants have reviewed this Agreement and that in connection auditing such Consolidated financial statements, nothing came to their attention to cause them to believe that the Loan Parties had failed to comply with the terms, covenants, provisions or conditions of this Agreement insofar as they relate to accounting matters, except for those described in reasonable detail in such consolidated financial statements has been made in accordance with generally accepted auditing standardsstatement;
(b) as soon as available and in any event within 45 fifty (50) days after the end of each of the first three Fiscal Quarters of each Fiscal Year Year, its Form 10-Q containing the Consolidated balance sheet and related statements of earnings, and cash flows of the Borrower, an unaudited consolidated balance sheet of the Lead Borrower and its Subsidiaries Subsidiaries, as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such the Fiscal Year andYear, commencing on December 31, 2017, together with comparative figures for results to the corresponding same Fiscal Quarter Periods of the prior Fiscal Year, all certified by a Financial Officer of the Lead Borrower as presenting in all material respects the financial condition and results of operations of the Lead Borrower and its Subsidiaries in accordance with GAAP consistently applied, subject to normal year end audit adjustments and the corresponding portion absence of the Borrower’s previous Fiscal Yearfootnotes;
(c) within thirty (30) days after the end of each of fiscal month of the Lead Borrower and its Subsidiaries, if so requested by the Administrative Agent, Consolidated and consolidating balance sheet and related statements of operations, stockholders' equity and cash flows of the Lead Borrower and its Subsidiaries, as of the end of and for such month and the elapsed portion of the Fiscal Year, with comparative results to the same Fiscal Periods of the prior Fiscal Year and to the Lead Borrower's and its Subsidiaries' budget for such Fiscal Year furnished pursuant to Section 5.1(e) hereof;
(i) concurrently with the any delivery of the financial statements referred to in subsections under clause (a) and or (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of a Financial Officer of the Lead Borrower in the form of Exhibit E (a "Compliance Certificate") (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate has occurred and, if such a Default or an Event of Default then existshas occurred, specifying the details thereof and the any action which the Borrower has taken or proposes proposed to take be taken with respect thereto, (ii) setting forth in reasonable detail reasonably detailed calculations demonstrating compliance with respect to the financial covenants set forth in Article VIFixed Charge Coverage Ratio and Capital Expenditures for such period (whether or not such are then required to be tested hereunder), and (iii) specifying any change certifying that such financial statements present in all material respects the financial condition and results of operations of the Lead Borrower and its Subsidiaries in accordance with GAAP consistently applied for such period, subject, in the identity case of the Subsidiaries as of the quarterly statements, to normal year end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent audit adjustments and the Lenders on the Closing Date or as absence of the most recent Fiscal Year or Fiscal Quarter, as the case may befootnotes, and (iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the mostly recently delivered Lead Borrower's and its Subsidiaries' audited financial statements of the Borrower and its Subsidiaries, referred to in Section 3.4 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Brown Shoe Co Inc)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
Agent: (a) as soon as available and in any event within 90 120 days (or, in the case of the Fiscal Year ended December 31, 2019, within 150 days) after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its SubsidiariesSubsidiaries (except, with respect to the Fiscal Year ending December 31, 2019, such audited financial statements shall be for each of R&S Northeast and AvKare), containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail (together with customary management discussion and analysis) and reported on by BDO USA, LLP or other an independent public accountants accountant of nationally recognized standing or any other independent accounting firm reasonably acceptable to the Administrative Agent (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such auditaudit except any “going concern” qualification or exception as a result of the impending Maturity Date, any change in accounting practices or policies due to changes in GAAP that is required or approved by such auditors or any prospective non-compliance with Section 6.1 and/or 6.3 hereof) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year (or R&S Northeast and AvKare, as applicable) on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
; (b) as soon as available and in any event within 45 days (or, in the case of each Fiscal Quarter in Fiscal Year 2020, 60 days) after the end of each Fiscal Quarter of the first three Borrower (commencing with the Fiscal Quarters of each Fiscal Year of the BorrowerQuarter ending March 31, 2020), an unaudited consolidated balance sheet DB1/ 110470318.9 103 of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and Quarter, the corresponding portion of the Borrower’s previous Fiscal Year;
Year and the budget for such Fiscal Year and including management’s discussion and analysis of operating results inclusive of operating metrics in comparative form and certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of income or operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes; (c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal chief financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of Holdings and/or the Borrower and its Restricted Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
Certificate and (dv) concurrently setting forth reasonably detailed calculations in the case of financial statements delivered under paragraph (a) above, beginning with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by for the principal executive officer or the principal financial officer Fiscal Year of the Borrower setting forth as ending December 31, 2021, of a recent date, a true Excess Cash Flow and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof Available Amount for such Fiscal Year; (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(fd) as soon as available and in any event within 60 90 days after the end of each Fiscal Year of the Borrowercalendar year, forecasts and a 12 month pro forma budget for the succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow and including management discussion and analysis of operating results inclusive of operating metrics in comparative form; (e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials, in each case, filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; (f) to the extent applicable, simultaneously with the delivery of each set of consolidated financial statements referred to in clauses (a) and (b) above, the related unaudited consolidating financial information (i) that explains in reasonable detail the differences (if any) between the information relating to the Borrower and its Subsidiaries for Subsidiaries, on the current Fiscal Year prepared by one hand, and the management of the Borrower and detailing the projected cash flows and capital expenditures of information relating to the Borrower and its Restricted Subsidiaries for on a standalone basis, on the other hand, and (ii) reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such current Fiscal Year;
consolidated financial statements; and (g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) and promptly following any request therefor, (i) such other information regarding the results of operations, business affairs and financial position condition of Holdings, the Borrower or any of its Restricted Subsidiaries as and (ii) that the Administrative Agent or Agent, any Lender may or the Issuing Bank reasonably request.determines is required by regulatory authorities under the Beneficial Ownership Regulation
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Amneal Pharmaceuticals, Inc.)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USAXxxxx & Young, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, an unaudited consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Default or Event of Default (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period[Reserved];
(f) as soon as available and in any event within 60 days promptly after the end same become publicly available, copies of each Fiscal Year all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the Borrowersaid Commission, a 12 month budget for or with any national securities exchange, or distributed by the Borrower and to its Subsidiaries for shareholders generally, as the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partycase may be; and
(hg) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request. So long as the Borrower is required to file periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, the Borrower may satisfy its obligation to deliver the financial statements referred to in clauses (a) and (b) above by delivering such financial statements by electronic mail to such e-mail addresses as the Administrative Agent and the Lenders shall have provided to the Borrower from time to time. In the event Borrower ceases to be a publicly-reporting company then from and after such date any requirement in this Agreement to provide Lender or Administrative Agent with documents or materials that are on file or have been filed with the Securities and Exchange Commission shall become a requirement for Borrower to provide and deliver such materials and documents as and when Borrower would otherwise have been required were Borrower a publicly reporting company.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and Agent, with sufficient copies for each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, Ernst & Young LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination exami-nation by such accountants in connection with such consolidated xxxxxxx-dated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 60 days after the end of each Fiscal Quarter of the first three Borrower (other than the fourth Fiscal Quarters Quarter of each any Fiscal Year of the BorrowerYear), an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer treasurer or the principal financial officer of the Borrower Borrower;
(id) certifying as to whether there exists soon as avail-able and is continuing a Default or Event in any event within 90 days after the end of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity each Fiscal Year of the Subsidiaries Borrower, an unaudited Borrower only balance sheet as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as related unaudited statements of the most recent Fiscal Year or Fiscal Quarter, as the case may be, in-come and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements cash flows of the Borrower for such Fiscal Year, all certified by a Responsible Officer as having been developed and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently used in connection with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumesSection 5.1(a), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available avail-able and in any event within 60 days after the end of each Fiscal Year Quarter of the Borrower, a 12 month budget for (other than the fourth Fiscal Quarter of any Fiscal Year) an unaudited Borrower only balance sheet as of the end of such Fiscal Quarter and its Subsidiaries for the current Fiscal Year prepared by the management related unaudited statements of in-come and cash flows of the Borrower for such Fiscal Quarter, all certified by a Responsible Officer as having been developed and detailing used in connection with the projected cash flows and capital expenditures financial statements referred to in Section 5.1(a);
(f) concurrently with the delivery of the Borrower and its Subsidiaries for financial statements referred to in clause (a) above, a certificate of the accounting firm that reported on such current Fiscal Yearfinancial statements stating whether they obtained any knowledge during the course of their examination of such financial statements of any Default or Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(g) promptly following as soon as available, and in any event within 30 days after the written request regulatory filing date for each such document, copies of the Administrative AgentAnnual Statement and financial statements relating thereto of each of the Material Insurance Subsidiaries, audited and certified by independent certified public accountants of nationally recognized standing, all such statements to be prepared in accordance with SAP consistently applied through the period reflected hereof;
(h) as soon as available, and in any event within 15 days after the regulatory filing date (other than the fourth Fiscal Quarter of any Fiscal Year), copies of the Quarterly Statement and financial statements relating thereto of each of the Material Insurance Subsidiaries, certified by the chief financial officer or other appropriate officer of such Material Insurance Subsidiary having substantially the same authority and responsibility as the chief financial officer, all such statements to be prepared in accordance with SAP consistently applied through the period reflected hereof;
(i) promptly and in any event within ten (10) days after obtaining knowledge thereof, notification of any negative change in ratings given by any nationally recognized rating agency in respect of any Material Insurance Subsidiary and (i) upon receipt thereof, copies of ratings analysis by any such nationally recognized rating agency relating to any Material Insurance Subsidiary;
(j) promptly and in any event within five (5) days after obtaining knowledge thereof, notification of any changes after the Closing Date in the rating given by either S&P’s or Xxxxx’x, implicitly or explicitly, in respect of the Borrower’s senior unsecured Indebtedness;
(k) promptly after the filing of the same with any state insurance regulatory authority, a list copy of all Persons purchasing Hydrocarbons from any Loan Party“Management Analysis and Discussion” filed by any Material Insurance Subsidiary with any such state insurance regulatory authority (other than as contained in an Annual Statement or a Quarterly Statement); and
(hl) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Landamerica Financial Group Inc)
Financial Statements and Other Information. The Borrower will deliver furnish to each Lender through the Administrative Agent and each LenderAgent:
(a) as soon as available and but in any event within 90 120 days after the end of each Fiscal Year fiscal year of the Borrower, a copy its audited consolidated statement of the annual audited report for such Fiscal Year for the Borrower financial position and its Subsidiariesrelated statements of earnings, containing a consolidated balance sheet of the Borrower changes in shareholders' equity and its Subsidiaries cash flows as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearyear, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USA, Ernst & Young LLP or other independent public accountants of nationally recognized national standing (without a “"going concern” " or like qualification, qualification or exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial position and the position, results of operations and cash flows of the Borrower and its consolidated Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and GAAP; provided, however, that the examination by Borrower may deliver, in lieu of the foregoing, the annual report of the Borrower for such accountants in connection fiscal year on Form 10-K filed with such consolidated the SEC, but only so long as the financial statements has been made contained in accordance with generally accepted auditing standardssuch annual report on Form 10-K are substantially the same in content as the financial statements referred to in the preceding provisions of this paragraph (a);
(b) as soon as available and but in any event within 45 60 days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the Borrower, an unaudited its consolidated balance sheet statement of the Borrower financial position and its Subsidiaries related statements of earnings and cash flows as of the end of and for such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements then elapsed portion of income the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial position, results of operations and cash flows of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided, however, that the Borrower may deliver, in lieu of the foregoing, the quarterly report of the Borrower for such Fiscal Quarter and fiscal quarter on Form 10-Q filed with the then elapsed portion SEC, but only so long as the financial statements contained in such quarterly report on Form 10-Q are substantially the same in content as the financial statements referred to in the preceding provisions of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Yearthis paragraph (b);
(c) concurrently with the each delivery of the financial statements referred to in subsections under clause (a) and or (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of a Financial Officer of the Borrower (i) certifying as to whether there exists whether, to the best knowledge of such Financial Officer, a Default has occurred and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then existshas occurred and is continuing, specifying the details thereof and the any action which the Borrower has taken or proposes proposed to take be taken with respect thereto, (ii) setting forth in reasonable detail reasonably detailed calculations demonstrating compliance with the financial covenants set forth in Article VI, Section 6.06 and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, 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 Compliance Certificatecertificate;
(d) concurrently with the each delivery of the financial statements referred to in subsection under clause (ba) of this Sectionabove, a certificate letter signed by the principal executive officer or accounting firm that reported on such financial statements to the principal financial officer effect that, in the course of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions examination upon which their report for such fiscal year was based (but without any special or additional audit procedures for that purpose other than review of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumesprovisions of this Agreement), nothing came to their attention that caused them to believe that there were any Defaults or Events of Default involving accounting matters or, if such accountants became aware of any such Defaults or Events of Default, specifying the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreementnature thereof;
(e) concurrently promptly after the same become publicly available, copies of all periodic and other reports on Forms 8-K, 10-Q and 10-K and all proxy statements filed by the Borrower or any Subsidiary with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed SEC or any other documents distributed by the principal executive officer Borrower to its shareholders generally which contain the equivalent information to that contained in such Forms or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly periodproxy statements;
(f) as soon as available and in upon any event within 60 days after sale or other disposition of Shares by the end of each Fiscal Year of the BorrowerBorrower or any Subsidiary, a 12 month budget for certificate of a Financial Officer setting forth in reasonable detail the Borrower calculations required to determine the portion of such Shares which constitute Restricted Margin Stock, the portion of such Shares which constitute Unrestricted Margin Stock and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for Net Cash Proceeds attributable to each such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partyportion; and
(hg) promptly following any request therefor, such other information regarding the results of operations, business affairs operations and financial position condition of the Borrower or any Subsidiary, or compliance with the terms of its Subsidiaries this Agreement, as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (CSX Corp)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
: (a) as soon as available and in any event within 90 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower and its Subsidiaries, containing a consolidated balance sheet sheets of the Borrower and its Subsidiaries as of the end of such Fiscal Year fiscal year and the related consolidated statements of income, stockholders’ ' equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USA, LLP KPMG L.L.P. or other independent public accountants of nationally recognized standing (without a “"going concern” " or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year fiscal year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
; (b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of Borrower's previous fiscal year, all certified by the Borrower’s previous Fiscal Year;
chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; (c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by certificate of the principal executive chief financial officer or the principal financial officer of the Borrower treasurer, (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change setting forth whether the Borrower is in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, compliance with Section 5.11 and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Borrower's audited financial statements of the Borrower and its Subsidiaries, referred to in Section 4.4 or which have been previously delivered hereunder and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
certificate; (d) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Default or Event of Default (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
; (e) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the financial statements referred to in subsection (b) of this Sectionsaid Commission, a certificate signed or with any national securities exchange, or distributed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Propertiesits shareholders generally, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent case may reasonably request with respect to the relevant quarterly period;
be; and (f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Ruby Tuesday Inc)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event (i) within 90 120 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower and its Subsidiaries, containing a consolidated combined and combining balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year fiscal year and the related consolidated combined and combining statements of income, stockholdersowners’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, (ii) setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USAXxxx Xxxxxx, LLP LLC, Bloomington, Minnesota or other independent public accountants of nationally recognized standing acceptable to Lender (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries Subsidiaries, for such Fiscal Year fiscal year on a consolidated combined basis in accordance with GAAP and that the examination examination by such accountants in connection with such consolidated combined financial statements has been made in accordance with generally accepted auditing standardsGAAP;
(b) as soon as available and in any event within 45 30 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrowercalendar quarter, an unaudited consolidated combined balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter calendar quarter and the related unaudited consolidated combined statements of income income, stockholder’s equity and cash flows flow of the Borrower and its Subsidiaries for such Fiscal Quarter calendar quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery fiscal year, all certified by an appropriate Responsible Officer of Borrower as presenting fairly in all material respects the financial statements referred to in subsections (a) condition and (b) results of this Section (other than the financial statements for the fourth Fiscal Quarter operations of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for on a combined basis in accordance with GAAP, subject to normal year-end audit adjustments and the current Fiscal Year prepared by the management absence of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Yearfootnotes;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower and its Subsidiaries, containing (i) a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholdersof changes in shareholders’ equity and of cash flows (together with all footnotes thereto), and (ii) a condensed balance sheet of the Borrower only and its Subsidiaries for such Fiscal Yearthe related condensed statements of income and of cash flows, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USA, LLP Xxxxx Xxxxxx PLLC or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year cash flows on a consolidated basis of the Borrower for such fiscal year in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries on a consolidated basis and of the Borrower on a stand alone basis as of the end of such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries on a consolidated basis and of the Borrower on a stand alone basis, each for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Yearfiscal year, all certified by the principal financial or accounting officer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis and of the Borrower on a stand alone basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of the Borrower a Responsible Officer, (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, and (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection clauses (a) and (b) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer duly executed copies of the Borrower setting forth as of Borrower’s then-current FR Report Y-9C and FR Report Y-9LP and a recent date, a true and complete list of all Hedging Transactions duly executed copy of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxxthen-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to current Call Report for each such agreementFinancial Institution Subsidiary;
(e) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(f) information required to be delivered pursuant to paragraphs (a), (b), (c) and (d) shall be deemed to have been delivered on the date on which the Borrower provides notice to the Lender that such information has been posted on the Borrower’s website on the internet at such website addresses listed on the signature page of such notice, at xxx.xxx.xxx or at another website identified in such notice and accessible by the Lender without charge; provided, that the Borrower shall deliver paper copies of the reports and financial statements referred to in subsection paragraphs (a), (b), (c) of this Section, a certificate signed and (d) if reasonably requested by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan PartyLender; and
(hg) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Greene County Bancshares Inc)
Financial Statements and Other Information. The Borrower will deliver furnish to the Administrative Agent and for distribution to each Lender:
(a) commencing with the fiscal year ending December 31, 2011, as soon as available and in any event within 90 no later than the earlier of (x) 95 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of Credit Parties and (y) five days after the annual audited report for such Fiscal Year date the financial statements for the Borrower and its Subsidiaries, containing a Subsidiaries referred to in clause (i) below are required to be filed pursuant to Section 13 or 15(d) of the Exchange Act with the Securities and Exchange Commission (after giving effect to any extensions):
(i) consolidated statements of income and consolidated statements of retained earnings and cash flows of the Credit Parties and Empire Burbank for such fiscal year and the related consolidated balance sheet of the Borrower Credit Parties and its Subsidiaries Empire Burbank as of at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the corresponding consolidated figures for the previous Fiscal Yearpreceding fiscal year (provided that, all in reasonable detail if the report of the Borrower filed with the Securities and reported Exchange Commission on Form 10-K fulfills the foregoing requirements for the furnishing of annual financial statements, the Borrower may fulfill such requirement by BDO USAdelivering to the Administrative Agent such report of the Borrower on Form 10-K for the applicable fiscal year), LLP or other and
(ii) an opinion of independent certified public accountants of nationally recognized national standing (without a “going concern” or like qualification, qualification or exception or explanation and without any qualification or exception as to the scope of such audit) audit (except to the effect extent that the Borrower can provide evidence reasonably satisfactory to the Administrative Agent that such qualification or exception is solely a result of the maturity of the Media Holdings Discount Notes)) stating that said consolidated financial statements referred to in the preceding clause (i) fairly present fairly in all material respects the consolidated financial position condition and the results of operations of the Borrower Credit Parties as at the end of, and its Subsidiaries for for, such Fiscal Year on a consolidated basis fiscal year in accordance with GAAP GAAP, and that the examination by a statement of such accountants that, in connection with such consolidated financial statements has been made in accordance their audit, nothing came to their attention that caused them to believe that the Credit Parties failed to comply with generally accepted auditing standards;the terms, covenants, provisions or conditions of Section 7.10, insofar as they relate to accounting matters,
(b) as soon as available and in any event within 45 no later than the earlier of (x) 50 days after the end of each quarterly fiscal period (including the fourth fiscal period) of each fiscal year of the first three Fiscal Quarters Credit Parties and (y) five days after the date the financial statements for the Borrower and its Subsidiaries referred to in clause (i) below are required to be filed with the Securities and Exchange Commission (after giving effect to any extensions):
(i) consolidated statements of each Fiscal Year income of the BorrowerCredit Parties and Empire Burbank for such period and for the period from the beginning of the respective fiscal year to the end of such period, an unaudited and the related consolidated balance sheet of the Borrower Credit Parties and its Subsidiaries Empire Burbank as of at the end of such Fiscal Quarter and period, together with a comparison against amounts set forth in the related unaudited consolidated budget for statements of income and cash flows for such period (provided that, if the report of the Borrower filed with the Securities and its Subsidiaries Exchange Commission on Form 10-Q fulfills the foregoing requirements for the furnishing of quarterly financial statements, the Borrower may fulfill such Fiscal Quarter requirement by delivering to the Administrative Agent such report of the Borrower on Form 10-Q for the applicable fiscal quarter), and
(ii) a certificate of a Financial Officer of the Credit Parties and Empire Burbank, which certificate shall state that said consolidated financial statements referred to in the preceding clause (i) fairly present, in all material respects, the consolidated financial condition and results of operations of the Credit Parties and Empire Burbank in accordance with generally accepted accounting principles, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments and the then elapsed portion omission of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Yearfootnotes);
(c) concurrently commencing with the delivery of the financial statements referred to in subsections delivered under clause (b) above for the fiscal quarter ending March 31, 2011, concurrently with any delivery of financial statements under clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently promptly upon the mailing thereof to the holders of any Indebtedness with the delivery an outstanding principal amount of not less than $2,500,000 of the financial statements referred to in subsection (b) of this SectionCredit Parties or any Holding Company generally, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list copies of all Hedging Transactions of the Loan Partiesfinancial statements, the material terms thereof (including the type, term, effective date, termination date regular reports and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreementother statements so mailed;
(e) concurrently commencing with the delivery of the financial statements referred to in subsection (b) of this Sectionfiscal year beginning on January 1, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties2012, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within no later than 60 days after the end commencement of each Fiscal Year of the Borrowerfiscal year, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries Credit Parties for such current Fiscal Yearfiscal year;
(gf) promptly following after the written request same become publicly available, copies of all regular and periodic reports and all registration statements and prospectuses filed by any Holding Company or any Credit Party with the Securities and Exchange Commission or any Governmental Authority succeeding to any or all of the Administrative Agent, a list functions of said Commission or with any national securities exchange or market quotation system and copies of all Persons purchasing Hydrocarbons from press releases made available generally by the Holding Company or any Loan Credit Party to the public concerning material developments in the business of the Holding Company or any Credit Party, including, to the extent not included in the foregoing, any regular periodic and other reports and statements provided by any Holding Company or any Credit Party to the holders of Subordinated Indebtedness (other than Xxxxxxxx Subordinated Debt) or the holders of the Media Holdings Discount Notes or other Holding Company Debt; provided, however, that, except for any information required to be delivered pursuant to subsection 6.1(a) or (b) above, so long as the Borrower files any such material with the Securities and Exchange Commission pursuant to the requirements of the Exchange Act, the requirements of this paragraph shall be deemed satisfied by such filings; and
(hg) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of any Credit Party, or compliance with the Borrower or any terms of its Subsidiaries this Agreement, as the Administrative Agent or any Lender the Required Lenders may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 105 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report financial statements for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholderspartners’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, KPMG LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each any Fiscal Year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(hd) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request. So long as the Borrower is required to file periodic reports under Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended, the Borrower’s obligation to deliver the financial statements referred to in clauses (a) and (b) shall be deemed satisfied upon the filing of such financial statements in the XXXXX system and the giving by the Borrower of notice to the Lenders and the Administrative Agent as to the public availability of such financial statements from such source.
Appears in 1 contract
Samples: 364 Day Senior Bridge Loan Agreement (Tc Pipelines Lp)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 120 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ ' equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USAKPMG, LLP or other independent public accountants of nationally recognized standing (without a “"going concern” " or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated and consolidating basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s 's previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal chief executive officer, chief financial officer or the principal financial officer treasurer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance CertificateBorrower;
(d) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partysaid Commission; and
(he) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Northern Border Partners Lp)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, Ernst & Young LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each Fiscal Quarter of the first three Borrower (other than the last Fiscal Quarters Quarter of each Fiscal Year of the BorrowerYear), an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer a Responsible Officer of the Borrower Borrower, (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VIARTICLE VI (including (I) for purposes of Section 6.4, (iii) specifying any change in the identity a listing of the Subsidiaries as perecentage of Long Inventory of the end Borrower and its Subsidiaries in each rating category assigned by each rating agency and (II) for purposes of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified Section 6.5, reasonably detailed information relating to the Administrative Agent and deductions from revenue for such period attributable to the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be“asset management” segment in determining operating income for such segment for such period), and (iviii) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Borrower’s audited financial statements of the Borrower and its Subsidiaries, referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate; provided, however, that no action shall be required by the Borrower under this clause (iii) to the extent any such change in GAAP or the application thereof does not affect or apply to the Borrower and its Subsidiaries, including the presentation by the Borrower of its financial statements;
(d) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Commission, or any Governmental Authority succeeding to any or all functions of the Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(e) as soon as practicable and in any event within 15 days after the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer business plan of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current ensuing four (4) Fiscal Year Quarters, such plan to be prepared in accordance with GAAP and to include, on an annual basis, the following: (i) a quarterly operating and capital budget, (ii) a projected income statement, (iii) a statement of cash flows and balance sheet, and (iv) calculations demonstrating projected compliance with the financial covenants set forth in ARTICLE VI, accompanied by the management a certificate of the Borrower signed by a Responsible Officer of the Borrower to the effect that such projections are good faith estimates (utilizing reasonable assumptions) of the financial condition and detailing the projected cash flows and capital expenditures operations of the Borrower and its Subsidiaries for such current Fiscal Yearperiod;
(f) together with each delivery of a Compliance Certificate pursuant to clause (c) above, an updated list (containing information comparable to that required to be set forth on Schedule 4.14 with respect to the Subsidiaries of the Borrower as of the Closing Date) of all Subsidiaries of the Borrower;
(g) promptly following as soon as practicable and in any event within 30 days after the written request end of each Fiscal Quarter, the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan PartyFOCUS Report for such Fiscal Quarter filed by PJ&Co with the Commission; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any Subsidiary and/or the Long Inventory of the Borrower and its Subsidiaries as the Administrative Agent or any Lender may reasonably request. In the event that any financial statement delivered pursuant to clause (a) or (b) immediately above or any Compliance Certificate is shown to be inaccurate (regardless of whether this Agreement or any Commitment is in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then (i) the Borrower shall immediately deliver to the Administrative Agent a corrected Compliance Certificate for such Applicable Period, (ii) the Applicable Margin for such Applicable Period shall be determined in accordance with the corrected Compliance Certificate, and (iii) the Borrower shall immediately pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the Administrative Agent to the Obligations. This Section 5.1 shall not limit the rights of the Administrative Agent or the Lenders with respect to Section 2.13(c) and ARTICLE VIII.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USAKPMG, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year fiscal year on a consolidated and consolidating basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Yearfiscal year, all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of the Borrower a Responsible Officer, (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change setting forth in reasonable detail the identity calculation of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified Total Debt to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, EBITDA Ratio and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Borrower’s audited financial statements of the Borrower and its Subsidiaries, referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the financial statements referred to in subsection (b) of this Sectionsaid Commission, a certificate signed or with any national securities exchange, or distributed by the principal executive officer or Borrower to its shareholders generally, as the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreementcase may be;
(e) concurrently with promptly upon the delivery consummation of the financial statements referred to in subsection (b) any offering of this Section, a certificate signed by the principal executive officer common or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year preferred stock of the Borrower, a 12 month budget for notice thereof and the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management aggregate amount of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;proceeds raised therefrom.
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(hf) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year fiscal year and the related consolidated statements of income, stockholders’ ' equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USADeloitte & Touche, LLP or other independent public accountants of nationally recognized standing (without a “"going concern” " or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year fiscal year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements of income income, stockholders equity and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of Borrower's previous fiscal year, all certified by the Borrower’s previous Fiscal Yearchief financial officer, the controller or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) above, a certificate of this Section a Responsible Officer, (other than the i) certifying as to such financial statements for consistent with the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer applicable requirements of the Borrower Securities and Exchange Commission, (iii) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (iiiii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, VI and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Borrower's audited financial statements of the Borrower and its Subsidiaries, referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Default or Event of Default (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the financial statements referred to in subsection (b) of this Sectionsaid Commission, a certificate signed or with any national securities exchange, or distributed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Propertiesits shareholders generally, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent case may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partybe; and
(hf) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Harland John H Co)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:(for distribution to the Lenders):
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of incomeoperations, stockholders’ equity (deficit) and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, UHY LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income operations and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year, in each case certified by a Responsible Officer as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, be and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower December 31, 2009, and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection clause (a) above, a certificate of the accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of their examination of such financial statements of any Default or Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) as soon as available and in any event within 30 days after the end of the calendar year, a pro forma budget for the succeeding Fiscal Year, together with an income statement, EBITDA projection and analysis of financial covenant compliance, all on a pro forma basis;
(f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(g) within 60 days after the end of each fiscal quarter, a report setting forth, for each calendar month during the then current fiscal year to date, the volume of production and sales attributable to production (and the prices at which such sales were made and the revenues derived from such sales) for each such calendar month from the Oil and Gas Properties, and setting forth the related ad valorem, severance and production taxes and lease operating expenses attributable thereto and incurred for each such calendar month;
(h) concurrently with the delivery of the Financial Statements referred to in clauses (a) and (b) of this Sectionabove, a certificate signed by of Financial Officer, in form and substance satisfactory to the principal executive officer or the principal financial officer of the Borrower Administrative Agent, setting forth as of a recent date, a true and complete list of all open Hedging Transactions of the Loan PartiesBorrower and each Subsidiary, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxxNet Xxxx-to-market value thereforMarket Exposure therefore, any new credit support agreements relating thereto not listed on Schedule 4.244.15, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(ei) at least 5 days prior written notice (or such shorter time as may be approved by the Administrative Agent) of any amendment, waiver or other modification to any First Lien Loan Document and, concurrently with the execution and delivery of the financial statements referred to in subsection (b) of this Sectionthereof, a certificate signed by the principal executive officer or the principal financial officer fully executed counterparty of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and any such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly perioddocument;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(hj) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request; and
(k) a copy of any notice of default received under any First Lien Loan Document and a copy of any notice of default received from a Hedge Provider or a Bank Product Provider (as each is defined in the First Lien Intercreditor Agreement). So long as the Borrower is required to file periodic reports under Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended, Borrower may satisfy its obligation to deliver the financial statements referred to in clauses (a) and (b) above, and the information referred to in clause (f) above, by delivering such financial statements and information by electronic mail to such e-mail addresses as the Administrative Agent and Lenders shall have provided to Borrower from time to time.
Appears in 1 contract
Samples: Second Lien Term Loan Agreement (Ram Energy Resources Inc)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 ninety (90) days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year fiscal year and the related consolidated statements of income, stockholders’ ' equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USA, Deloitte & Touche LLP or other independent public accountants of nationally recognized standing (without a “"going concern” " or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year fiscal year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 forty-five (45) days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of Borrower's previous fiscal year, all certified by a Responsible Officer as presenting fairly in all material respects the Borrower’s previous Fiscal Yearfinancial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of the Borrower a Responsible Officer, (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Borrower's audited financial statements of the Borrower and its Subsidiaries, referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Default or Event of Default (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(f) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year copy of the Borrower, a 12 month 's proposed annual budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Yearfinancial projections;
(g) promptly following concurrently with a request for a Borrowing or a request for the written request issuance of a Letter of Credit and on the fifteenth (15th) day of each January, April, July, and October, the Borrower shall deliver to the Administrative Agent a Borrowing Base Certificate;
(h) on the fifteenth (15th) day of each January, April, July, and October, the Borrower shall deliver to the Administrative Agent, in a form reasonably acceptable to the Administrative Agent, a list listing and aging of all Persons purchasing Hydrocarbons from any Loan PartyBorrower's accounts receivable; and
(hi) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (American Healthways Inc)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 120 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report financial statements for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ changes in members' equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, KPMG LLP or other independent public accountants of nationally recognized standing (without a “"going concern” " or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 90 days after the end of each of the first three Fiscal Quarters of each any Fiscal Year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income income, changes in members' equity and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s 's previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(hd) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver furnish to the Administrative Agent and each Lender:(for further distribution by the Administrative Agent to the Lenders):
(a) commencing with the fiscal year ending December 31, 2019, as soon as available and available, but in any event within 90 120 days after the end of each Fiscal Year fiscal year of the BorrowerBorrower (or, a copy in the case of the annual fiscal year ending December 31, 2019, 150 days), the audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of at the end of such Fiscal Year fiscal year, and the related audited consolidated statements of operations and consolidated statements of comprehensive income, stockholdersconsolidated statements of changes in members’ equity and consolidated audited statements of cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, and related notes and related explanations thereto, setting forth in each case (other than the fiscal year ended December 31, 2019 (with respect to which for the avoidance of doubt, no comparative consolidated figures or reconciliation will be required)) in comparative form form, the figures for the previous Fiscal Yearpreceding fiscal year, all in reasonable detail and reported on by BDO USA, Xxxxx & Young LLP or other independent public accountants of nationally recognized standing (national standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards, without a qualification as to going concern as defined by Statement on Accounting Standards AU-C Section 570 “going concernThe Auditor’s Consideration of an Entity’s Ability to Continue as a Going Concern” (or like qualification, exception any similar statement under any amended or explanation and without any qualification successor rule as may be adopted by the Auditing Standards Board from time to time) or exception as to the scope of the audit (other than, in each such auditcase, (1) solely with respect to, or expressly resulting solely from, an upcoming maturity date within twelve (12) months under the documentation governing any Indebtedness, (2) the activities, operations, financial results, assets or liabilities of any Unrestricted Subsidiaries or (3) any prospective breach of the Financial Maintenance Covenant), to the effect that such consolidated financial statements present fairly in all material respects the consolidated financial position and the consolidated results of operations and cash flows of the Borrower and its consolidated Subsidiaries as of the end of and for such Fiscal Year year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standardsconsistently applied;
(b) commencing with the fiscal quarter ended September 30, 2019, as soon as available and available, but in any event within 45 days after the end of each fiscal quarter of each fiscal year of the first three Fiscal Quarters of each Fiscal Year Borrower (or, in the case of the Borrowerfiscal quarters ending September 30, an 2019, December 31, 2019, March 31, 2020, June 30, 2020 and September 30, 2020, 60 days), the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of at the end of such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements of income operations and unaudited consolidated statements of comprehensive income, unaudited consolidated statements of changes in members’ equity and consolidated unaudited statements of cash flows for such fiscal quarter and for the elapsed portion of the fiscal year ended with the last day of such fiscal quarter, and the related unaudited consolidated statement of cash flow for the portion of the fiscal year ended with the last day of such fiscal quarter, and setting forth in each case (other than for the quarterly periods ending September 30, 2019, December 31, 2019, March 31, 2020, June 30, 2020 and September 30, 2020 (with respect to which for the avoidance of doubt, no comparative consolidated figures or reconciliation will be required)) in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheets, as of the end of) the previous fiscal year, all certified by a Financial Officer as presenting fairly in all material respects the consolidated financial position and consolidated results of operations and cash flows of the Borrower and its consolidated Subsidiaries as of the end of and for such Fiscal Quarter fiscal quarter (except in the case of cash flows) and the then elapsed portion of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Yearfiscal year on a consolidated basis in accordance with GAAP consistently applied, subject to changes resulting from audit and normal year-end audit adjustments and to the absence of footnotes;
(c) concurrently for any period in which a Subsidiary has been designated as an Unrestricted Subsidiary, simultaneously with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries above for such current Fiscal Yearperiod, supplemental financial information necessary to eliminate the accounts of Unrestricted Subsidiaries from such consolidated financial statements;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (GoHealth, Inc.)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as reasonably available and in any event within 90 100 days after the end of each Fiscal Year of the BorrowerYear, a copy of the annual audited report financial statements for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of at the end of such Fiscal Year and the related consolidated statements of income, stockholders’ ' equity and cash flows (together with all footnotes notes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, Ernst & Young LLP or other independent public accountants of nationally recognized standing (without a “"going concern” " or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as reasonably available and in any event within 45 50 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the BorrowerYear, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of at the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s 's previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed all certified by the principal executive officer or the principal chief financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth presenting fairly in reasonable detail calculations demonstrating compliance with all material respects the financial covenants set forth in Article VI, (iii) specifying any change in the identity condition and results of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures operations of the Borrower and its Subsidiaries for such current Fiscal Yearon a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of notes;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Dollar General Corp)
Financial Statements and Other Information. The Borrower will deliver Furnish to the Administrative Agent and each LenderAgent:
(a) as As soon as available and and, in any event event, within 90 days after the end close of each Fiscal Year of the Borrowerfiscal year, a copy of (x) the annual audited report for Company’s 10-K in respect of such Fiscal Year for fiscal year, and (y)
(i) the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries Company’s Consolidated Balance Sheet as of the end of such Fiscal Year fiscal year, and (ii) the related consolidated statements Consolidated Statement of incomeIncome and Retained Earnings, stockholders’ equity and cash flows (together with all footnotes thereto) Consolidated Statement of Cash Flows, as of and through the Borrower and its Subsidiaries for end of such Fiscal Yearfiscal year, setting forth in each case in comparative form the corresponding figures for in respect of the previous Fiscal Yearfiscal year, all in reasonable detail detail, and reported on accompanied by BDO USAa report of the Company’s auditors, LLP or other independent public accountants of nationally recognized standing which report shall state that (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of A) such audit) to the effect that auditor has audited such financial statements present fairly in all material respects the financial position and the results of operations of the Borrower and its Subsidiaries for statements, (B) such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been audit was made in accordance with generally accepted auditing standardsstandards in effect at the time and provides a reasonable basis for such opinion, and (C) said financial statements have been prepared in accordance with GAAP (provided that, notwithstanding the foregoing, such report may be with reference to such financial statements which have given effect to the consolidation of any FIN 46 Entities with the Company);
(b) as [reserved];
(c) As soon as available 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 fiscal year, a copy of (x) the BorrowerCompany’s 10-Q in respect of such fiscal quarter, an unaudited consolidated balance sheet of and (y) (i) the Borrower and its Subsidiaries Company’s Consolidated Balance Sheet as of the end of such Fiscal Quarter quarter, and (ii) the related unaudited consolidated statements Consolidated Statement of income Income and cash flows Retained Earnings, and Consolidated Statement of Cash Flows for (A) such quarter, and (B) the period from the beginning of the Borrower and its Subsidiaries for such Fiscal Quarter and then current fiscal year to the then elapsed portion end of such Fiscal Year andquarter, commencing on December 31in each case in comparable form with the prior fiscal year, 2017, together all in reasonable detail and prepared in accordance with comparative figures for the corresponding Fiscal Quarter GAAP (without footnotes and the corresponding portion of the Borrower’s previous Fiscal Yearsubject to normal year-end and audit adjustments);
(cd) concurrently Simultaneously with the delivery of the financial statements referred to in subsections (arequired by Section 5.07(a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Sectionor 5.07(c), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date a Compliance Certificate, as of the mostly recently delivered audited financial statements fiscal period then ended, certified by a Financial Officer of the Borrower Company, which shall certify that no Default or Event of Default shall have occurred and its Subsidiaries, andbe continuing or, if any change has occurredso, specifying the effect all such Defaults and Events of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this SectionDefault, a certificate signed by the principal executive officer or the principal financial officer of the Borrower and setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreementcomputations in reasonable detail demonstrating compliance with Section 6.08;
(e) concurrently with the delivery Upon an executive officer of the financial statements Company becoming aware thereof, prompt written notice of: (i) any citation, summons, subpoena, order to show cause or other order naming the Company or any Subsidiary a party to any proceeding before any Governmental Authority which could reasonably be expected to have a Material Adverse Effect, and include with such notice a copy of such citation, summons, subpoena, order to show cause or other order, (ii) any lapse or other termination of any license, permit, franchise or other authorization issued to the Company or any Subsidiary by any Governmental Authority, (iii) any refusal by any Governmental Authority to renew or extend any license, permit, franchise or other authorization, and (iv) any dispute between the Company or any Subsidiary and any Governmental Authority, which lapse, termination, refusal or dispute, referred to in subsection clause (bii), (iii) of this Sectionor (iv) above, could reasonably be expected to have a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly periodMaterial Adverse Effect;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year Upon an executive officer of the BorrowerCompany becoming aware thereof, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management prompt written notice of the Borrower occurrence of (i) each Default, and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year(ii) each Material Adverse Effect;
(g) promptly following Upon the written request forwarding thereof to the shareholders of the Administrative AgentCompany generally, a list copies of all Persons purchasing Hydrocarbons from any Loan Partyfinancial statements, reports and proxy statements so furnished;
(h) Promptly after either rating agency providing a rating for the Index Debt pursuant to the definition of “Applicable Rate” shall have publicly announced a change in the rating established or deemed to have been established for the Index Debt, written notice of such rating change; and
(hi) promptly following any Promptly after request therefor, such other information regarding relating to the results of operations, financial condition or business affairs and financial position of the Borrower or any of its Company, the Subsidiaries and the FIN 46 Entities, as the Administrative Agent Agent, any Issuing Bank, the Swingline Lender or any Lender at any time or from time to time may reasonably request. Each report and other document required to be delivered by the Company pursuant to subparagraphs (a), (c), (d) and (g) of this Section 5.07 shall be deemed to have been delivered on the date upon which (i) other than in the case of the Compliance Certificate, the Company files such documents with the SEC via the XXXXX filing system (or any successor system), to the extent such documents are publicly available, or (ii) the Company notifies the Administrative Agent that such report or other document has been posted at a site (the address of which shall be contained in such notice) on the world wide web, which site is accessible by a widely held nationally recognized web browser, from which such report or document may be readily viewed and printed. The Administrative Agent shall promptly furnish to each Lender a copy (in the form received) of each notice or other information provided to the Administrative Agent under this Section 5.07.
Appears in 1 contract
Samples: Credit Agreement (Fiserv Inc)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 105 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report financial statements for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholderspartners’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, KPMG LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination examination by such accountants in connection with such consolidated consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each any Fiscal Year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(hd) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request. So long as the Borrower is required to file periodic reports under Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended, the Borrower’s obligation to deliver the financial statements referred to in clauses (a) and (b) shall be deemed satisfied upon the filing of such financial statements in the XXXXX system and the giving by the Borrower of notice to the Lenders and the Administrative Agent as to the public availability of such financial statements from such source.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Tc Pipelines Lp)
Financial Statements and Other Information. The Lead Borrower will deliver furnish to the Administrative Agent and Agents for delivery to the Lenders, each Lenderof the following, provided that the Lead Borrower need not furnish copies of information referred to in subsections (a), (b), (g) or (m) if on or before the applicable day set forth below, such information is available either on EXXXX or on the Lead Borrower’s web site:
(a) as soon as available and in any event within 90 ninety-five (95) days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Lead Borrower and its Subsidiaries, a copy of its Form 10-K containing a consolidated the Consolidated balance sheet and related statements of the Borrower earnings, shareholders’ equity and its Subsidiaries cash flows as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearyear, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail audited and reported on by BDO USAErnst & Young, LLP or other another independent public accountants accountant of nationally recognized national standing (without a “going concern” or like qualification, qualification or exception or explanation and without any a qualification or exception as to the scope of such audit) to the effect that such Consolidated financial statements present fairly in all material respects the financial position condition and the results of operations of the Lead Borrower and its Subsidiaries for such Fiscal Year on a consolidated Consolidated basis in accordance with GAAP consistently applied, and that the examination a written statement by such accountants to the effect that such accountants have reviewed this Agreement and that in connection auditing such Consolidated financial statements, nothing came to their attention to cause them to believe that the Loan Parties had failed to comply with the terms, covenants, provisions or conditions of this Agreement insofar as they relate to accounting matters, except for those described in reasonable detail in such consolidated financial statements has been made in accordance with generally accepted auditing standardsstatement;
(b) as soon as available and in any event within 45 fifty (50) days after the end of each of the first three Fiscal Quarters of each Fiscal Year Year, its Form 10-Q containing the Consolidated balance sheet and related statements of earnings, and cash flows of the Borrower, an unaudited consolidated balance sheet of the Lead Borrower and its Subsidiaries Subsidiaries, as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such the Fiscal Year andYear, commencing on December 31, 2017, together with comparative figures for results to the corresponding same Fiscal Quarter Periods of the prior Fiscal Year, all certified by a Financial Officer of the Lead Borrower as presenting in all material respects the financial condition and results of operations of the Lead Borrower and its Subsidiaries in accordance with GAAP consistently applied, subject to normal year end audit adjustments and the corresponding portion absence of the Borrower’s previous Fiscal Yearfootnotes;
(c) within thirty (30) days after the end of each of fiscal month of the Lead Borrower and its Subsidiaries, if so requested by the Administrative Agent, Consolidated and consolidating balance sheet and related statements of operations, stockholders’ equity and cash flows of the Lead Borrower and its Subsidiaries, as of the end of and for such month and the elapsed portion of the Fiscal Year, with comparative results to the same Fiscal Periods of the prior Fiscal Year and to the Lead Borrower’s and its Subsidiaries’ budget for such Fiscal Year furnished pursuant to Section 5.1(e) hereof;
(d) concurrently with the any delivery of the financial statements referred to in subsections under clause (a) and or (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of a Financial Officer of the Lead Borrower in the form of Exhibit E (a “Compliance Certificate”) (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate has occurred and, if such a Default or an Event of Default then existshas occurred, specifying the details thereof and the any action which the Borrower has taken or proposes proposed to take be taken with respect thereto, (ii) setting forth in reasonable detail reasonably detailed calculations demonstrating compliance with respect to the financial covenants set forth in Article VIFixed Charge Coverage Ratio for such period (whether or not it is then required to be tested hereunder), (iii) specifying any change certifying that such financial statements present in all material respects the financial condition and results of operations of the Lead Borrower and its Subsidiaries in accordance with GAAP consistently applied for such period, subject, in the identity case of the Subsidiaries as of the quarterly statements, to normal year end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent audit adjustments and the Lenders on the Closing Date or as absence of the most recent Fiscal Year or Fiscal Quarterfootnotes, as the case may be, and (iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the mostly recently delivered Lead Borrower’s and its Subsidiaries’ audited financial statements of the Borrower and its Subsidiaries, referred to in Section 3.4 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
, and (dv) concurrently containing either a certification that there has been no change to the information disclosed in any of the Schedules delivered in connection with Sections 3.1 through 3.24 of this Agreement or any other Loan Document (or after the delivery of the financial statements referred first Compliance Certificate delivered pursuant to in subsection this subsection, as previously certified), or, if so, specifying all such changes, provided that, notwithstanding the foregoing, no such revisions or updates shall be deemed to have amended, modified, or superseded any such schedules as originally attached hereto (b) of this Section, a certificate signed by or after the principal executive officer or the principal financial officer delivery of the first Compliance Certificate delivered pursuant to this subsection, as previously certified), or to have cured any breach of warranty or representation resulting from the inaccuracy or incompleteness of any such schedules, unless and until the Administrative Agent shall have accepted in writing such revisions or updates to any such schedules; and provided further that the Administrative Agent shall be deemed to have accepted such revisions or updates unless the Administrative Agent delivers a written objection thereto to the Lead Borrower setting forth as within thirty (30) days after the date such revisions or updates have been received;
(e) no sooner than sixty (60) days and not less than thirty (30) days prior to the commencement of a recent date, a true and complete list of all Hedging Transactions each Fiscal Year of the Loan Parties, the material terms thereof a detailed preliminary Consolidated and consolidating budget by month for such Fiscal Year (including a projected Consolidated and consolidating balance sheet and related statements of projected operations and cash flow as of the typeend of and for such Fiscal Year) and, term, effective date, termination date and notional amounts or volumes), within forty-five (45) days after the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to commencement of each such agreementFiscal Year, a final Consolidated and consolidating budget by month for such Fiscal Year;
(ef) concurrently with within seventeen (17) days (or such longer period as the delivery Administrative Agent may agree in its reasonable discretion, but in any event not to exceed twenty-five (25) days) after the end of the financial statements referred to in subsection (b) of this Sectioneach month, a certificate signed in the form of Exhibit D (a “Borrowing Base Certificate”) showing the Borrowing Base as of the close of business on the last day of the immediately preceding month, each such Borrowing Base Certificate to be certified as complete and correct on behalf of the Loan Parties by a Financial Officer of the Lead Borrower, provided, however, if and so long as an Event of Default has occurred and is continuing or if Excess Availability is less than the greater of (i) twenty (20%) percent of the lesser of the then (x) Total Commitments or (y) Borrowing Base and (ii) $25,000,000, Administrative Agent may require that Borrowers furnish such Borrowing Base Certificate (showing the Borrowing Base as of the close of business on the last day of the immediately preceding week) weekly on Wednesday of each week;
(g) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the principal executive officer Lead Borrower or any other Loan Party 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, as the case may be;
(h) the financial and collateral reports described on Schedule 5.1(h) hereto, at the times set forth in such Schedule;
(i) with respect to each Permitted Acquisition, to the extent permitted by Applicable Law, as soon as available, but not less than ten (10) Business Days prior to the consummation of a Permitted Acquisition, written notice to the Administrative Agent of such Permitted Acquisition together with a copy of all business and financial information reasonably requested by the Administrative Agent and, in the event that the total consideration paid or payable in connection with such Permitted Acquisition (whether in cash, property or securities) exceeds $35,000,000 or the principal financial officer total consideration paid or payable in connection with such Permitted Acquisition together with all other Permitted Acquisitions consummated after the Closing Date (whether in cash, property or securities) exceeds $100,000,000, a certificate of a Financial Officer of the Lead Borrower setting forth information as to quantities or production from certifying (and showing the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expensescalculations therefor in reasonable detail) that the Payment Conditions will be satisfied, and (ii) as soon as available the information provided to the board of directors of the Lead Borrower with respect to such other information Permitted Acquisition;
(j) with respect to each Permitted Acquisition, to the extent permitted by Applicable Law, as soon as available, (i) copies of the most recent audited (if available), and if later, unaudited Consolidated financial statements of the Person which is the subject of the Permitted Acquisition, (ii) a description of the proposed Permitted Acquisition in such detail as the Administrative Agent may reasonably request request, including copies of letters of intent and purchase and sale agreements or other acquisition documents executed in connection with respect to the relevant quarterly proposed Permitted Acquisition, (iii) an unaudited pro forma Consolidated balance sheet and income statement of the Loan Parties as of the end of the most recently completed fiscal quarter but prepared as though the Permitted Acquisition had occurred on such date and related pro forma calculations of Excess Availability (as of the last day of each Fiscal Quarter) and the Fixed Charge Coverage Ratio for the subsequent four fiscal quarters period, and (iv) unaudited projections of balance sheets and income statements and related calculations for the following four fiscal quarters, assuming the Permitted Acquisition has closed;
(fk) notice of any intended (i) sale or other disposition of assets of any Loan Party permitted under Section 6.5(c), (d) and (e) hereof at least three (3) Business Days prior to the date of consummation such sale or disposition or (ii) incurrence of any Indebtedness permitted hereunder promptly following the incurrence of such Indebtedness;
(l) within fifteen (15) days after receipt thereof, copies of all final (as soon distinguished from a preliminary or discussion draft) reports submitted to the Lead Borrower or any other Loan Party by independent certified public accountants in connection with each annual, interim or special audit of the books of the Loan Parties made by such accountants, including any management letter commenting on the Borrowers’ internal controls submitted by such accountants to management in connection with their annual audit;
(m) promptly after their preparation, copies of any and all proxy statements, financial statements (other than those described in subsections (a) and (b) hereof), and reports which the Lead Borrower makes available to its shareholders or any holder of any Indebtedness;
(n) if requested by the Administrative Agent, promptly after filing with the IRS or any other applicable Governmental Authority, a copy of each tax return filed by any Loan Party;
(o) within seventeen (17) days (or such longer period as available and the Administrative Agent may agree in its reasonable discretion, but in any event within 60 days after not to exceed twenty-five (25) days) of the end of each Fiscal Year of the Borrowerfiscal month (unless specifically indicated otherwise), a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared or more frequently if requested by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, as of the preceding fiscal month end, in form reasonably satisfactory to the Administrative Agent: (a) a list schedule of all Persons purchasing Hydrocarbons from any each Loan Party’s Accounts created since the last such schedule; (b) an aging of each Loan Party’s Accounts together with a reconciliation to the previous fiscal month end’s accounts receivable balance of such Loan Party’s Accounts and to its general ledger; (c) a summary aging by payee of each Loan Party’s accounts payable; and (d) upon the Agent’s request, a statement of the balance of each of the intercompany accounts of the Loan Parties; and
(hp) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Lead Borrower or any other Loan Party, or compliance with the terms of its Subsidiaries any Loan Document, as the Administrative Agent Agents or any Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Brown Shoe Co Inc)
Financial Statements and Other Information. The Borrower Sponsor will deliver to the Administrative Agent Servicer and each Lender:
(a) Participant: as soon as available and in any event within 90 ninety (90) days after the end of each Fiscal Year of the BorrowerHoldings, a copy of the annual audited report for such Fiscal Year for Holdings, the Borrower Sponsor and its Restricted Subsidiaries, containing a consolidated balance sheet of Holdings, the Borrower Sponsor and its Restricted Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of Holdings, the Borrower Sponsor and its Restricted Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, LLP Xxxxx & Xxxxx or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of Holdings, the Borrower Sponsor and its Restricted Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
. It is understood and agreed that the requirements of this Section 6.1(a) (bx) shall be satisfied by the delivery of the applicable annual report on Form 10-K of Holdings to the Securities and Exchange Commission if delivered within the applicable time period noted herein and is available to the Participants on XXXXX and (y) are effective as of the Effective Date; as soon as available and in any event within 45 forty-five (45) days after the end of each of the first three Fiscal Quarters Quarter of each Fiscal Year of Holdings (other than the Borrowerlast Fiscal Quarter), an unaudited consolidated balance sheet of Holdings, the Borrower Sponsor and its Restricted Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of Holdings, the Borrower Sponsor and its Restricted Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s Holdings’ previous Fiscal Year;
, all certified by the chief financial officer, treasurer or controller of Holdings as presenting fairly in all material respects the financial condition and results of operations of Holdings, the Sponsor and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes. It is understood and agreed that the requirements of this Section 6.1(b) (cx) shall be satisfied by the delivery of the applicable quarterly report on Form 10-Q of Holdings to the Securities and Exchange Commission if delivered within the applicable time period noted herein and is available to the Participants on XXXXX and (y) are effective as of the Effective Date; concurrently with the delivery of the financial statements referred to in subsections (aSections 6.1(a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of the Borrower a Responsible Officer, (i) certifying as to whether there exists and is continuing a Default Credit Event or an Unmatured Credit Event of Default on the date of such certificate andcertificate, and if such a Default Credit Event or an Unmatured Credit Event of Default then exists, specifying the details thereof and the action which the Borrower Sponsor has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, VII and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Holdings’ audited financial statements of the Borrower and its Subsidiaries, referred to in Section 5.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) certificate; concurrently with the delivery of the financial statements referred to in subsection (bSection 6.1(a) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent datetheir examination of such financial statements of any Credit Event or Unmatured Credit Event (which certificate may be limited to the extent required by accounting rules or guidelines); promptly after the same become publicly available, a true and complete list copies of all Hedging Transactions periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the Loan PartiesSecurities and Exchange Commission, or with any national securities exchange, or distributed by Holdings to its shareholders generally, as the material terms thereof (including case may be, it being agreed that the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(erequirements of this Section 6.1(e) concurrently with may be satisfied by the delivery of the financial applicable reports, statements referred or other materials to in subsection (b) of this Sectionthe Securities and Exchange Commission to the extent that such reports, a certificate signed by statements or other materials are available to the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas PropertiesParticipants on XXXXX; promptly following any request therefor, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information regarding the results of operations, business affairs and financial condition of Holdings, the Sponsor or any Restricted Subsidiary as the Administrative Agent Servicer or any Participant may reasonably request with respect to the relevant quarterly period;
(f) request; as soon as available and in any event within 60 days after the end of each Fiscal Year of the BorrowerHoldings, a 12 month budget forecasted income statement, balance sheet, and statement of cash flows for the Borrower and its Subsidiaries following Fiscal Year, in each case, on a quarter by quarter basis for the current such forecasted Fiscal Year prepared information; and concurrently with the delivery of the financial statements referred to in Sections 6.1(a) and (b), for any period in which there exist any Unrestricted Subsidiaries, unaudited consolidating financial statements reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such financial statements delivered pursuant to Section 6.1(a) and (b), all in reasonable detail and certified by the management chief executive officer, chief financial officer, treasurer or controller of the Borrower and detailing Sponsor as fairly presenting in all material respects the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agentfinancial condition, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs shareholders’ equity and financial position cash flows of Holdings, the Borrower or any Sponsor and its Restricted Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of its Subsidiaries as the Administrative Agent or any Lender may reasonably requestfootnotes.
Appears in 1 contract
Samples: Loan Facility Agreement and Guaranty (Aaron's Company, Inc.)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year fiscal year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USAErnst & Young, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year fiscal year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Yearfiscal year, all certified by a Responsible Officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of the Borrower a Responsible Officer, (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, VI and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Borrower’s audited financial statements of the Borrower and its Subsidiaries, referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Default or Event of Default (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the financial statements referred to in subsection (b) of this Sectionsaid Commission, a certificate signed or with any national securities exchange, or distributed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Propertiesits shareholders generally, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent case may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partybe; and
(hf) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Loan Agreement (American Healthways Inc)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year fiscal year and the related consolidated statements of income, stockholders’ ' equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USA, PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized standing (without a “"going concern” " or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year fiscal year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of Borrower's previous fiscal year, all certified by the Borrower’s previous Fiscal Yearchief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of the Borrower a Responsible Officer, (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, VI and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Borrower's audited financial statements of the Borrower and its Subsidiaries, referred to in Section~4.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Default or Event of Default (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with at or before the time of delivery of the financial statements referred to in subsection required by Section 5.1(a) and (b) of this Section), a certificate signed by the principal executive officer or the principal financial officer Borrowing Availability Certificate as of the Borrower setting forth information as to quantities or production from last day of the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly periodimmediately preceding fiscal quarter end;
(f) as soon as available and in any event within 60 days promptly after the end same become publicly available, copies of each Fiscal Year all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the Borrowersaid Commission, a 12 month budget for or with any national securities exchange, or distributed by the Borrower and to its Subsidiaries for shareholders generally, as the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partycase may be; and
(hg) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of incomeoperations, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, Xxxxxxxx LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated and consolidating basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income operations and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) with respect to the financial statements referred to in clause (a) above, setting forth in reasonable detail calculations demonstrating the Borrower’s Excess Cash Flow as of the end of the applicable Fiscal Year, (iv) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (ivv) stating whether any change in GAAP or certifying that the application thereof has occurred since the date of the mostly recently delivered audited consolidated financial statements of the Borrower and its SubsidiariesSubsidiaries attached to such Compliance Certificate for the Fiscal Quarter or Fiscal Year, andas the case may be, if any change has occurred, specifying fairly present in all material respects the effect financial condition of the Borrower and its Subsidiaries as at the end of such change Fiscal Quarter or Fiscal Year on a consolidated basis, and the related statements of operations and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter or Fiscal Year, in accordance with generally accepted accounting principles consistently applied (subject, in the case of such quarterly financial statements accompanying such Compliance Certificatestatements, to normal year-end audit adjustments and the absence of footnotes);
(d) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Default or Event of Default (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(f) concurrently with the delivery of the financial statements referred to in subsection (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil pro forma budget (including reasonable data and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(funderlying assumptions relied upon in the formulation of such pro forma budget) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request; and
(h) so long as the Borrower is required to file periodic reports under Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended, Borrower may satisfy its obligation to deliver the financial statements referred to in clauses (a) and (b) above by delivering such financial statements by electronic mail to such e-mail addresses as the Administrative Agent and Lenders shall have provided to Borrower from time to time.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Easylink Services International Corp)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, LLP an independent public accountant of nationally recognized standing or other independent public accountants of nationally recognized standing accountant reasonably acceptable to the Required Lenders (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated and consolidating basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer a Responsible Officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VIVI and, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent datetheir examination of such financial statements of any Default or Event of Default (which certificate may be limited to the extent required by accounting rules, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts practices or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and
(f) no later than 15 days after the delivery of the financial statements referred to in subsection (a) above, projections for the succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow;
(g) concurrently with the delivery of the financial statements referred to in subsection subsections (a) and (b) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower report setting forth information as to quantities or production from the Loan Parties’ proved Oil historical performance of Delinquent Accounts together with a forecast of Delinquent Accounts, all in form and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may substance reasonably request with respect satisfactory to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan PartyLenders; and
(h) no later than 15 days after the Closing Date, certified copies of the recorded certificates of merger filed in Delaware and Maryland; and
(i) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Walter Investment Management Corp)
Financial Statements and Other Information. The Borrower will deliver or cause to be delivered to the Administrative Agent and each Lender:Lender (either in paper or electronic (PDF) form as the Lender may request):
(a) as soon as available practicable and in any event within 90 ninety (90) days after the end of each Fiscal Year of the BorrowerYear, a copy of the (o) an annual audited report for such Fiscal Year consolidated financial statements for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis prepared in accordance with GAAP Applicable Accounting Principles, and that (p) an annual operating budget for the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standardsupcoming Fiscal Year (specifically identifying the proceeds of the Loan used for general working capital purposes);
(b) as soon as available and in any event within 45 forty-five (45) days after the end of each of every Fiscal Quarter (other than the first three fourth Fiscal Quarters Quarter) of each Fiscal Year Year, management prepared unaudited consolidated quarterly financial statements of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery as soon as it obtains knowledge of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)any Default, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date notice of such certificate andDefault, if such a Default or together with an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth outline in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of action it is taking to remedy such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance CertificateDefault;
(d) concurrently with the delivery as soon as it obtains knowledge of the financial statements referred to in subsection (b) of this Sectionany Material Adverse Change, a certificate signed by the principal executive officer or the principal financial officer of the Borrower prompt written notice thereof setting forth as a description of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreementMaterial Adverse Change;
(e) concurrently as soon as it obtains knowledge of any judgment, order or award or the commencement of any proceeding or dispute affecting any Collateral or the Borrower which, either alone or when aggregated with all other such proceedings, has resulted in, or could result in, (q) a Material Adverse Effect, or (r) any single or multiple judgments, orders or awards ordering the delivery Borrower to pay more than $50,000 (or the equivalent in foreign currency) in the aggregate, notice of such judgments, orders or awards or proceedings; in each case, if requested by the Lender, together with an outline in reasonable detail of the financial statements referred to in subsection (b) particulars thereof, copies of this Sectionall pleadings, a certificate signed by the principal executive officer or the principal financial officer Xxxxxxxx’s legal counsel’s assessment of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect merits thereof (to the relevant quarterly period;extent such assessment can be provided without impairing attorney-client privilege) and the action the Borrower is taking in respect thereof; and
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefortime to time, such other additional information and documents regarding the results of operations, business affairs and financial position of the Borrower or any of its Subsidiaries Collateral as the Administrative Agent or any Lender may reasonably request, provided such request is in accordance with Section 3.3.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver Furnish to the Administrative Agent and each Lenderthe Banks:
(a) as soon as available and available, but in any no event within 90 more than one hundred twenty (120) days after the close of each fiscal year of such Borrower, copies of its audited (in the case of Eastern, Boston Gas and Midland) or unaudited (in the case of any other Borrower) Consolidated Balance Sheet and the related audited (in the case of Eastern, Boston Gas and Midland) or unaudited (in the case of any other Borrower) Consolidated Statements of Income, Cash Flows and Shareholders' Equity for such fiscal year setting forth in comparative form the corresponding figures for the preceding fiscal year. In the case of Eastern, Boston Gas and Midland, such financial statements shall be accompanied by a report of the Accountants which report shall state that said financial statements fairly present the financial position and results of operations of such Borrower as at the end of each Fiscal Year and for such fiscal year except as specifically stated therein. In the case of all Borrowers, such financial statements shall be accompanied by a certificate signed on behalf of such Borrower by the principal financial officer thereof to the effect that having read this Agreement, and based upon an examination which in the opinion of such officer was sufficient to enable such officer to make an informed statement, (i) such statements fairly present the financial position and results of the Borrower, a copy operations of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as on a Consolidated basis to the best of such officer's knowledge, (ii) nothing came to such officer's attention which caused such officer to believe that an Event of Default has occurred, or if an Event of Default has occurred, stating the facts with respect thereto and whether the same has been cured prior to the date of such certificate, and, if not, what action is proposed to be taken with respect thereto and (iii) nothing came to such officer's attention which caused such officer to believe that the Borrowers and the Guarantor are not in compliance with all of the end terms, covenants and conditions of such Fiscal Year this Agreement and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standardsLoan Documents;
(b) as soon as available and available, but in any no event within 45 more than sixty (60) days after the close of each quarter (except the last quarter) of each fiscal year of such Borrower, copies of its Consolidated Balance Sheet and Consolidated Statements of Income and Cash Flows as of and through the end of each such quarter, together with a certificate signed on behalf of such Borrower by the principal financial officer thereof to the effect that having read this Agreement, and based upon an examination which in the opinion of such officer was sufficient to enable such officer to make an informed statement, (i) such statements fairly present the financial position and results of the first three Fiscal Quarters operations of each Fiscal Year of the Borrower, an unaudited consolidated balance sheet of the such Borrower and its Subsidiaries as on a Consolidated basis to the best of such officer's knowledge, (ii) nothing came to such officer's attention which caused such officer to believe that an Event of Default has occurred, or if an Event of Default has occurred, stating the facts with respect thereto and whether the same has been cured prior to the date of such certificate, and, if not, what action is proposed to be taken with respect thereto and (iii) nothing came to such officer's attention which caused such officer to believe that the Borrowers and the Guarantor are not in compliance with all of the end terms, covenants and conditions of such Fiscal Quarter this Agreement and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Yearother Loan Documents;
(c) concurrently simultaneously with the delivery of the financial statements referred to in subsections paragraphs (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed statement certified by the principal executive officer financial or the principal financial accounting officer of Eastern in substantially the Borrower (i) certifying as to whether there exists form of Exhibit J hereto and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating computations evidencing compliance with the financial covenants set forth contained in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, ss 8 and (ivif applicable) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying a statement explaining the effect of such change on the financial statements accompanying such Compliance Certificateany changes in GAAP since December 31, 1993;
(d) concurrently promptly after any Authorized Signatory has knowledge thereof, notice of: (i) failure of any Borrower or the Guarantor to comply with the delivery of the financial statements referred to in subsection (b) terms, covenants and conditions of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, Agreement and the counterparty other Loan Documents applicable to each such agreementit or (ii) the existence of any Event of Default;
(e) concurrently with prompt written notice in the delivery of the financial statements referred to in subsection event that (bi) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position of the Borrower or any of its Subsidiaries shall fail to make any payments when due and payable under any Plan or Multiemployer Plan, or (ii) such Borrower or such Subsidiary shall receive notice from the Internal Revenue Service or the Department of Labor that such Borrower or such Subsidiary shall have failed to meet the minimum funding requirements of any Plan or Multiemployer Plan, including therewith a copy of such notice; and
(f) promptly upon becoming available, copies of all regular, periodic or special reports or other material which may be filed with or delivered by such Borrower to the Securities and Exchange Commission, or any other Governmental Body succeeding to the functions thereof; and
(g) such other information and reports relating to the affairs of such Borrower and its Subsidiaries, as the Administrative Agent or any Lender Bank at any time or from time to time may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Parent and the Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the BorrowerParent, a copy of the annual audited report for such Fiscal Year for the Borrower Parent and its Subsidiaries, containing a consolidated balance sheet of the Borrower Parent and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower Parent and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USAPricewaterhouseCoopers LLP or, LLP or other if such auditors are no longer used by Parent, from independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower Parent and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each Fiscal Quarter of the first three Fiscal Quarters of each Fiscal Year of the BorrowerParent ending on or about March 31, June 30, and September 30, an unaudited consolidated balance sheet of the Borrower Parent and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower Parent and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of Parent’ or the Borrower’s ’s, as applicable, previous Fiscal Year and the corresponding figures for the budget for the current Fiscal Year, and together with a management discussion and analysis with respect thereto;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer a Financial Officer of the Borrower Parent (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has Parent and its Subsidiaries have taken or proposes propose to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants covenant set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Restatement Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower Parent and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrowercalendar year, forecasts and a 12 month pro forma budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current succeeding Fiscal Year;
(g) promptly following the written request , containing an income statement, balance sheet and statement of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partycash flow; and
(he) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request. Information required to be delivered solely pursuant to Section 5.1(a) and Section 5.1(b) shall be deemed to have been delivered if such information shall have been timely posted on Parent’s website on the internet (currently xxx.xxxxxxxxxxx.xxx) or shall be available on the website of the Securities and Exchange Commission at xxxx://xxx.xxx.xxx.
Appears in 1 contract
Samples: Credit Agreement (LendingTree, Inc.)
Financial Statements and Other Information. The Borrower Agent will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the BorrowerParent, a copy of the annual audited report for such Fiscal Year for the Borrower Parent and its Subsidiaries, containing a consolidated balance sheet of the Borrower Parent and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower Parent and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USAErnst & Young, LLP LLP, or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower Parent and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided, that so long as the Parent is required to file periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, the Borrower Agent may satisfy its obligation to deliver the financial statements referred to in this clause (a) by delivering such financial statements by electronic mail to such e-mail addresses as the Administrative Agent and the Lenders shall have provided to the Borrower Agent from time to time;
(b) [reserved];
(c) as soon as available and in any event within 30 days after the end of each Fiscal Month (or 45 days after the end of each of the first three last Fiscal Quarters Month of each Fiscal Year Quarter) other than the last Fiscal Month of the Borrowera Fiscal Year, an unaudited consolidated balance sheet of the Borrower Parent and its Subsidiaries as of the end of such Fiscal Quarter Month and the related unaudited consolidated statements of income and cash flows of the Borrower Parent and its Subsidiaries for such Fiscal Quarter Month and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter Month and the corresponding portion of the BorrowerParent’s previous Fiscal Year and the corresponding figures for the budget for the current Fiscal Year;
(cd) concurrently with the delivery of the financial statements referred to in subsections (a) and (bc) of this Section (other than the financial statements for the fourth last Fiscal Quarter Month of each Fiscal Year delivered pursuant to subsection (bc) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower Parent (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower Parent has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with of the financial covenants set forth in Article VI (provided, that the financial covenants will not be tested except as provided in Article VI), (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter Month from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal QuarterMonth, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower Parent and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(de) to the extent otherwise obtained by the Borrowers, concurrently with the delivery of the financial statements referred to in subsection (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed accounting firm that reported on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection stating whether they obtained any knowledge during the course of their examination of such financial statements of any Default or Event of Default (b) of this Section, a which certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect be limited to the relevant quarterly periodextent required by accounting rules or guidelines);
(f) as soon as available and in any event within 60 30 days after the end beginning of each Fiscal Year of (commencing with the BorrowerFiscal Year ending on or about March 31, 2018), forecasts and a 12 month pro forma budget for such Fiscal Year (prepared on a monthly basis) and each other Fiscal Year which commences before the Borrower Revolving Commitment Termination Date (prepared on an annual basis), each containing an income statement, balance sheet and its Subsidiaries statement of cash flow for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Yearapplicable period covered thereby;
(g) promptly following upon Administrative Agent’s request from time to time, an updated Information Certificate for each Loan Party;
(h) promptly after the written request same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Parent to its shareholders generally, as the case may be (provided, however, that items to be delivered pursuant to this clause 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, so long as the Borrower Agent shall have notified (which may be by facsimile or electronic mail) Administrative Agent of the Administrative Agent, a list filing of all Persons purchasing Hydrocarbons from any Loan Partysuch documents); and
(hi) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower Parent or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request;
(j) within 30 days after the end of each Fiscal Month, the Borrower Agent shall deliver to the Administrative Agent, a Borrowing Base Certificate as of the last day of the immediately preceding Fiscal Month, which shall be in such form as shall be reasonably satisfactory to the Administrative Agent, setting forth a categorical breakdown of all Accounts of each Loan Party and a calculation of Eligible Accounts as of such last day of the preceding Fiscal Month; provided, however, during an Increased Reporting Period, the Borrower Agent shall instead provide the Borrowing Base Certificates and other information required by this Section 5.1(j) on a weekly basis, no later than three Business Days after the end of each calendar week or with such other frequency as may be required by the Administrative Agent from time to time;
(k) within 30 days after the end of each Fiscal Month, Borrower Agent shall deliver to the Administrative Agent, in form reasonably acceptable to the Administrative Agent, (A) a report of sales, collections, debit and credit adjustments and (B) a detailed aged trial balance of all Accounts of each Loan Party existing as of the last day of the preceding Fiscal Month, specifying the names, and face value for each Account Debtor obligated on an Account of such Loan Party so listed and all other information necessary to calculate Eligible Accounts as of such last day of the preceding Fiscal Month or such other date reasonably required by the Administrative Agent; provided, however, during an Increased Reporting Period, the Borrower Agent shall instead provide such reports and other information required by this Section 5.1(k) on a weekly or more frequent basis as may be requested by Administrative Agent from time to time; and
(l) upon request by the Administrative Agent, the Borrower Agent shall deliver to the Administrative Agent, in form reasonably acceptable to the Administrative Agent, (A) lockbox, bank and investment account statements and (B) copies of proof of delivery and the original or an accurate facsimile copy of all documents, including repayment histories and present status reports relating to the Accounts of each Loan Party so scheduled and such other matters and information relating to the status of then existing Accounts of each Loan Party as the Administrative Agent shall reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver Maintain, and cause each Subsidiary to maintain, a standard system of accounting in accordance with GAAP, and furnish to the Administrative Agent and each Lender:
(a) as As soon as available and and, in any event within 90 days event, no later than the date that is five (5) Business Days after the end of each Fiscal Year of Borrower's quarterly report on Form 10-K is required to be filed with the BorrowerSEC, a copy of (x) the annual audited report for Company's 10-K in respect of such Fiscal Year for fiscal year, and (y)
(i) the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries Company's Consolidated Balance Sheet as of the end of such Fiscal Year fiscal year, and (ii) the related consolidated statements Consolidated Statements of incomeEarnings, stockholders’ equity Shareholders' Equity and cash flows (together with all footnotes thereto) Cash Flows, as of and through the Borrower and its Subsidiaries for end of such Fiscal Yearfiscal year, setting forth in each case in comparative form the corresponding figures for in respect of the previous Fiscal Yearfiscal year, all in reasonable detail detail, and reported on accompanied by BDO USAa report of the Company's auditors, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any which report shall contain no qualification or exception as to the scope of audit or going concern and shall state that (A) such audit) to the effect that auditors audited such financial statements present fairly in all material respects the financial position and the results of operations of the Borrower and its Subsidiaries for statements, (B) such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been audit was made in accordance with generally accepted auditing standardsstandards in effect at the time and provides a reasonable basis for such opinion, and (C) said financial statements have been prepared in accordance with GAAP;
(b) as As soon as available and and, in any event within 45 days event, no later than the date that is five (5) Business Days after the end Borrower's quarterly report on Form 10-Q is required to be filed with the SEC, a copy of each (x) the Company's 10-Q in respect of such fiscal quarter, and (y)
(i) the first three Fiscal Quarters of each Fiscal Year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries Company's Consolidated Balance Sheet as of the end of such Fiscal Quarter quarter, and (ii) the related unaudited consolidated statements Consolidated Statements of income Earnings, Shareholders' Equity and cash flows Cash Flows for (A) such quarter, and (B) the period from the beginning of the Borrower and its Subsidiaries for such Fiscal Quarter and then current fiscal year to the then elapsed portion end of such Fiscal Year andquarter, commencing on December 31in each case in comparable form with the prior fiscal year, 2017, together all in reasonable detail and prepared in accordance with comparative figures for the corresponding Fiscal Quarter GAAP (without footnotes and the corresponding portion of the Borrower’s previous Fiscal Yearsubject to year-end adjustments);
(c) concurrently with Within five (5) Business Days after the delivery of the financial statements referred to in subsections required by clauses (a) and (b) above, a certificate of this Section the chief financial officer or treasurer of the Company (or such other than officer as shall be acceptable to the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this SectionAdministrative Agent), substantially in the form of EXHIBIT E (such certificate, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower "COMPLIANCE Certificate"), (i1) certifying as to whether there exists and is continuing a that no Default or Event of Default on the date of shall have occurred or be continuing or, if so, specifying in such certificate and, if all such a Default or an Event Defaults and Events of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect theretoDefault, (ii2) setting forth computations in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VISECTIONS 6.10, (iii) specifying any change in the identity of the Subsidiaries 7.1, 7.5 and 7.12 as of at the end of such Fiscal Year fiscal quarter or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarterfiscal year, as the case may be, and (iv3) stating whether any change in GAAP setting forth a list of all Persons that became Domestic Subsidiaries during such fiscal quarter or fiscal year, as the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;case may be.
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this SectionPromptly upon becoming available, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list copies of all Hedging Transactions of regular or periodic reports (including, without limitation, current reports on Form 8-K) which the Loan PartiesCompany or any Subsidiary may now or hereafter be required to file with or deliver to the Securities and Exchange Commission, or any other Governmental Authority succeeding to the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support documentfunctions thereof, and the counterparty copies of all material news releases sent to each such agreementall stockholders;
(e) concurrently Prompt written notice of: (i) any citation, summons, subpoena, order to show cause or other order naming the Company or any Subsidiary a party to any proceeding before any Governmental Authority which could reasonably be expected to have a Material Adverse Effect, and include with such notice a copy of such citation, summons, subpoena, order to show cause or other order, and (ii) (A) any lapse or other termination of any license, permit, franchise or other authorization issued to the delivery of Company or any Subsidiary by any Governmental Authority, (B) any refusal by any Governmental Authority to renew or extend any license, permit, franchise or other authorization, and (C) any dispute between the financial statements Company or any Subsidiary and any Governmental Authority, in each case where any such lapse, termination, refusal or dispute referred to in subsection clause (bii)(A), (ii)(B) of this Section, or (ii)(C) above could reasonably be expected to have a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly periodMaterial Adverse Effect;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year Prompt written notice of the Borroweroccurrence of (i) each Default, (ii) each Event of Default, and (iii) each change which has had or could reasonably be expect to have a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal YearMaterial Adverse Effect;
(g) promptly following the written request of If requested by the Administrative Agent, a list copies of all Persons purchasing Hydrocarbons from any Loan Party; andaudit reports and management letters delivered in connection with the statements referred to in SECTION 6.07(A) and (B);
(h) promptly following any request thereforFrom time to time, such other information regarding the results of operations, business affairs and financial position or business of the Borrower Company and the Subsidiaries, as the Administrative Agent, at the request of any Lender, may reasonably request. Documents required to be delivered pursuant to SECTION 6.07(A), (B) or (D) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto, on the Company's website on the Internet at the website address listed on SCHEDULE 10.02; or (ii) on which such 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: (i) the Company shall deliver paper copies of its Subsidiaries as such documents to the Administrative Agent or any Lender that requests the Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) 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. Notwithstanding anything contained herein, in every instance the Company shall be required to provide paper copies of the Compliance Certificates required by SECTION 6.07(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 Borrowers with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Company hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the L/C Issuer 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 reasonably request.be "public-side" Lenders (I.E., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a "PUBLIC LENDER"). The Company 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
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, PriceWaterhouseCoopers LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year, all certified by the chief financial officer, the treasurer or the controller of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section above, (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (bi) of this Section), a Compliance Certificate signed by the principal chief executive officer or the principal chief financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VIa written list of all Material Subsidiaries formed, (iii) specifying acquired or created from a transfer of assets or through any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on other event since the Closing Date or as with respect to the first delivery of financial statements after the most recent Fiscal Year or Fiscal Quarter, as the case may be, Closing Date and (iv) stating whether any change in GAAP or the application thereof has occurred thereafter since the date of the mostly most recently delivered audited Compliance Certificate, such list to include the name of each new Material Subsidiary, its state of incorporation, list of its officers and directors and any other information that the Administrative Agent shall reasonably request;
(d) promptly upon receipt thereof, copies of all reports on the financial statements of the Borrower and its Subsidiaries, andsubmitted by independent public accountants to Borrower in connection with each annual, if any change has occurred, specifying the effect interim or special audit of such change on the Borrower’s consolidated financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreementstatements;
(e) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the financial statements referred to in subsection (b) of this Sectionsaid Commission, a certificate signed or with any national securities exchange, or distributed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Propertiesits shareholders generally, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent case may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partybe; and
(hf) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request. Originals of such financial statements and other reports and materials referred to in this Section 5.1 need be delivered only to the Administrative Agent; all other Lenders may receive copies. So long as the Borrower maintains a site on Intralinks®, Borrower may satisfy its obligation to deliver the financial statements and other reports and materials referred to in this Section 5.1 by delivering such financial statements and other reports and materials to the Administrative Agent and to Intralinks® for posting and requesting that each Lender be notified thereof.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent Agents and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the BorrowerBorrowers, a copy of (i) the annual audited report for such Fiscal Year for the Borrower Borrowers and its their Subsidiaries, containing a consolidated balance sheet of the Borrower Borrowers and its their Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower Borrowers and its their Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, LLP Ernst& Young or other independent public accountants of nationally recognized standing reasonably acceptable to the Administrative Agent (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower Borrowers and its their Subsidiaries for such Fiscal Year on a consolidated and consolidating basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
; provided, however, that so long as Delek US Holdings is required to file and has timely filed a 10-K with the SEC, such filing will be deemed to satisfy the foregoing covenant (bunless such filings contain a “going concern” or like qualification, exception or explanation and unless such filings contain a qualification or exception as to scope of such audit), and (ii) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, an unaudited consolidated balance sheet of the Borrower Borrowers and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the their Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as related consolidated statements of income, stockholders’ equity and cash flows of the most recent Borrowers and their Subsidiaries for such Fiscal Year or Year, setting forth in each case in comparative form the figures for the previous Fiscal Quarter, as the case may beYear, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;certified by a Responsible Officer.
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year Quarter of the BorrowerBorrowers, a 12 month budget for the Borrower an unaudited consolidated and its Subsidiaries for the current Fiscal Year prepared by the management consolidating balance sheet of the Borrower Borrowers and detailing their Subsidiaries as of the projected end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows and capital expenditures of the Borrower Borrowers and its their Subsidiaries for such current Fiscal Quarter and the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of Borrowers’ previous Fiscal Year;
(gc) promptly following as soon as available and in any event within 30 days after the written request end of each month, an unaudited consolidated and consolidating balance sheet of the Administrative AgentBorrowers and their Subsidiaries as of the end of such month and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrowers and their Subsidiaries for such month and the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form the figures for the corresponding month and the corresponding portion of Borrowers’ previous Fiscal Year, when applicable;
(d) concurrently with the delivery of the financial statements referred to in clauses (a), (b) and (c) above, a list Compliance Certificate signed by (x) one of all Persons purchasing Hydrocarbons from the principal executive officer, the principal financial officer or treasurer and (y) any Loan Partyother Responsible Officer of the Borrowers;
(e) concurrently with the delivery of the financial statements referred to in clause (a) above, any management letters issued by the accounting firm in connection with such financial statements;
(f) no later than 30 days after the commencement of each Fiscal Year, deliver to the Agents Projections for such Fiscal Year; and
(hg) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower Borrowers or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Delek US Holdings, Inc.)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower and its Subsidiaries, containing (i) a consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated and consolidating statements of income, stockholdersof changes in shareholders’ equity and of cash flows (together with all footnotes thereto), and (ii) a condensed balance sheet of the Borrower only and its Subsidiaries for such Fiscal Yearthe related condensed statements of income and of cash flows, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USA, Cherry Bekaert LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations and cash flows on a consolidated and consolidating basis of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis fiscal year in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided, that the requirements set forth in this clause (a), other than the certification of the Borrower’s certified public accountants set forth in clause (ii) above, may be fulfilled by providing to the Lender the report of the Borrower to the SEC on Form 10-K for the applicable fiscal year;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries on a consolidated basis as of the end of such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries on a consolidated basis, each for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Yearfiscal year, all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided, that the requirements set forth in this clause (b) with respect to the financial information of the Borrower and its Subsidiaries on a consolidated and consolidating basis may be fulfilled by providing to the Lender the report of the Borrower to the SEC on Form 10-Q for the applicable fiscal quarter;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower Certificate, (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, and (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection clauses (a) and (b) above, duly executed copies of this Section, the Borrower’s then-current FR Y-9C Report and FR Y-9LP Report and a certificate signed duly executed copy of the then-current Call Report for each Financial Institution Subsidiary and each such report so filed by the principal executive officer Borrower or the principal financial officer Financial Institution Subsidiaries with any Governmental Authority shall be true and correct and is in accordance with the respective books of account and records of the Borrower setting forth and the Financial Institution Subsidiaries, and will be prepared in accordance with applicable banking regulations, rules and guidelines on a basis consistent with prior periods, and fairly and accurately presents, in all material respects, the financial condition of the Borrower and the Financial Institution Subsidiaries and their respective assets and liabilities and the results of their respective operations as of a recent such date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly periodintentionally omitted);
(f) as soon as available and in any event within 60 days promptly after the end same become publicly available, copies of each Fiscal Year all periodic and other reports, financial statements, registration statements, proxy statements and other materials, together with any amendments or exhibits relating to any of the Borrowerforegoing, a 12 month budget for filed with the SEC, or any Governmental Authority succeeding to any or all functions of the SEC, or with any national securities exchange, or distributed by the Borrower and to its Subsidiaries for public security holders generally, as the current Fiscal Year prepared by case may be (to the management of extent not otherwise required to be delivered to the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal YearLender hereunder);
(g) promptly following the after receiving knowledge thereof, written request notice of all material charges, assessments, actions, suits and proceedings (as well as notice of the Administrative Agentoutcome of any such material charges, assessments, orders, actions, suits and proceedings) that are proposed or initiated by, or brought before, any court or Governmental Authority, in connection with the Borrower or any of the Financial Institution Subsidiaries, other than ordinary course of business litigation or proceedings which, if adversely decided, could not reasonably be expected to have a list Material Adverse Effect;
(h) promptly, and in any event within five Business Days after the execution or entry thereof, the execution or entry by the Borrower or any Financial Institution Subsidiary of all Persons purchasing Hydrocarbons from any Loan PartyRegulatory Agreement, together with a copy thereof if such disclosure is permitted by applicable law; and
(hi) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary, as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to Section 5.1(a) or (b) or Section 5.1(f) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents or provides a link thereto on the Borrower’s website on the internet at the website address set forth in Section 9.1 or (ii) on which such documents are posted on the Borrower’s behalf on an internet or intranet website, if any, to which the Lender have access; provided, that (A) the Borrower shall deliver paper copies of such documents to the Lender if so requested until a written notice is received by the Borrower from the Lender to cease delivering paper copies and (B) the Borrower shall notify (which may be by telefacsimile or electronic mail) the Lender of the posting of any such documents and provide to the Lender by electronic mail electronic versions (i.e. soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper or .pdf copies of all Compliance Certificates. The Borrower and each of its Subsidiaries maintain effective internal control over financial reporting (as defined under Rule 13-a15 and 15d-15 of the 1934 Act Regulations) and a system of internal accounting controls sufficient to provide reasonable assurances that: (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (E) any interactive data in eXtensible Business Reporting Language included in the Borrower’s SEC filings fairly presents the required information and is prepared in accordance with the SEC’s rules and guidelines applicable thereto. The Borrower and each of its Subsidiaries shall maintain an effective system of disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 of the 1934 Act Regulations) that are designed to ensure that the information required to be disclosed by the Borrower in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms, and is accumulated and communicated to the Borrower’s management, including its principal executive officer or officers and principal financial officer or officers, as appropriate, to allow timely decisions regarding disclosure.
Appears in 1 contract
Financial Statements and Other Information. The Borrower Agent will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the BorrowerParent, a copy of the annual audited report for such Fiscal Year for the Borrower Parent and its Subsidiaries, containing a consolidated balance sheet of the Borrower Parent and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower Parent and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USAErnst & Young, LLP LLP, or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower Parent and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided, that so long as the Parent is required to file periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, the Borrower Agent may satisfy its obligation to deliver the financial statements referred to in this clause (a) by delivering such financial statements by electronic mail to such e-mail addresses as the Administrative Agent and the Lenders shall have provided to the Borrower Agent from time to time;
(b) [reserved];
(c) as soon as available and in any event within 30 days after the end of each Fiscal Month (or 45 days after the end of each of the first three last Fiscal Quarters Month of each Fiscal Year Quarter) other than the last Fiscal Month of the Borrowera Fiscal Year, an unaudited consolidated balance sheet of the Borrower Parent and its Subsidiaries as of the end of such Fiscal Quarter Month and the related unaudited consolidated statements of income and cash flows of the Borrower Parent and its Subsidiaries for such Fiscal Quarter Month and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter Month and the corresponding portion of the BorrowerParent’s previous Fiscal Year and the corresponding figures for the budget for the current Fiscal Year;
(cd) concurrently with the delivery of the financial statements referred to in subsections (a) and (bc) of this Section (other than the financial statements for the fourth last Fiscal Quarter Month of each Fiscal Year delivered pursuant to subsection (bc) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower Parent (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower Parent has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with of the financial covenants set forth in Article VI (provided, that the financial covenants will not be tested except as provided in Article VI), (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter Month from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Restatement Effective Date or as of the most recent Fiscal Year or Fiscal QuarterMonth, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower Parent and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(de) to the extent otherwise obtained by the Borrowers, concurrently with the delivery of the financial statements referred to in subsection (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed accounting firm that reported on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection stating whether they obtained any knowledge during the course of their examination of such financial statements of any Default or Event of Default (b) of this Section, a which certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect be limited to the relevant quarterly periodextent required by accounting rules or guidelines);
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, PriceWaterhouseCoopers LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year, all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section above, (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (bi) of this Section), a Compliance Certificate signed by the principal chief executive officer or the principal chief financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VIa written list of all Material Subsidiaries formed, (iii) specifying acquired or created from a transfer of assets or through any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on other event since the Closing Date or as with respect to the first delivery of financial statements after the most recent Fiscal Year or Fiscal Quarter, as the case may be, Closing Date and (iv) stating whether any change in GAAP or the application thereof has occurred thereafter since the date of the mostly most recently delivered audited Compliance Certificate, such list to include the name of each new Material Subsidiaries, its state of incorporation, list of its officers and directors and any other information that the Administrative Agent shall reasonably request;
(d) promptly upon receipt thereof, copies of all reports on the financial statements of the Borrower and its Subsidiaries, andsubmitted by independent public accountants to Borrower in connection with each annual, if any change has occurred, specifying the effect interim or special audit of such change on the Borrower’s consolidated financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreementstatements;
(e) concurrently promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the delivery Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of the financial statements referred to in subsection (b) of this Sectionsaid Commission, a certificate signed or with any national securities exchange, or distributed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Propertiesits shareholders generally, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent case may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partybe; and
(hf) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request. So long as the Borrower maintains a site on Intralinks® and each Lender has a valid identification number and password with which to access information regarding the Borrower on Intralinks®, Borrower may satisfy its obligation to deliver the financial statements and other reports and materials referred to in clauses (a), (b) and (e) above by posting such financial statements and other reports and materials and having each Lender notified thereof.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and (for distribution to each Lender:):
(a) as soon as available and in any event within 120 days (or if Holdings (or the Borrower) is required to file periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, then 90 days days) after the end of each Fiscal Year of Holdings (commencing with the BorrowerFiscal Year ended December 31, 2023), a copy of the annual audited report for such Fiscal Year for the Borrower Holdings and its Subsidiaries, containing a consolidated balance sheet of the Borrower Holdings and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower Holdings and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, Xxxxx & Young LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such auditaudit (other than any “going concern” or similar qualification or exception related to the maturity of the Obligations)) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower Holdings and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP GAAP, and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards, and together with a management discussion and analysis with respect thereto;
(b) as soon as available and in any event within 45 days (or, with respect to the Fiscal Quarter ended March 31, 2024, 60 days) after the end of each of the first three Fiscal Quarters of each Holdings (commencing with the Fiscal Year of the BorrowerQuarter ended March 31, 2024), an unaudited consolidated balance sheet of the Borrower Holdings and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower Holdings and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s Holdings’ previous Fiscal Year, and together with a management discussion and analysis with respect thereto;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying that such financial statements fairly present the financial condition, results of operations, shareholders’ equity and cash flows of Holdings and its Subsidiaries on a consolidated basis in accordance with GAAP, in the case of quarterly financial statements subject only to normal year-end audit adjustments and the absence of footnotes, (ii) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (iiiii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VIVI (beginning with the Fiscal Year ended December 31, 2023), (iiiiv) specifying any change in the identity of the Holdings or any of its Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Holdings and its Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (ivv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower Holdings and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate, (vi) setting forth a list of all Subsidiaries of the Borrower (other than Specified Conflicted Subsidiaries) that are not Subsidiary Loan Parties as of such date and setting forth in reasonable detail calculations of total assets of such Subsidiaries as of such date and the total revenue of such Subsidiaries for the Test Period then ended and (vii) setting forth a list of all Specified Conflicted Subsidiaries as of such date and setting forth in reasonable detail calculations of (w) Indebtedness of such Specified Conflicted Subsidiaries incurred pursuant to Section 7.1(h) that remains outstanding as of such date, (x) the total amount of Investments made in Specified Conflicted Subsidiaries pursuant to Section 7.4(h) as of such date, (y) the total amount of Investments made by Loan Parties in Specified Conflicted Subsidiaries pursuant to Section 7.4(e) at times when the Total Leverage Ratio (calculated on a pro forma basis after giving effect to such Investments) was greater than 2.00:1.00 and (z) that portion of Consolidated EBITDA that is attributable to such Specified Conflicted Subsidiaries with respect to the applicable Fiscal Year or Fiscal Quarter end;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrowercalendar year, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow;
(ge) promptly following after the written request of the Administrative Agentsame become publicly available, a list copies of all Persons purchasing Hydrocarbons from periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Loan PartyGovernmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by Holdings to its shareholders generally, as the case may be; and
(hf) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower Holdings or any of its Subsidiaries (including information and documentation for purposes of compliance with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act and the Beneficial Ownership Regulation) as the Administrative Agent or any Lender may reasonably requestrequest (provided that no such information shall be required to be provided if providing such information would violate confidentiality agreements or result in a loss of attorney-client privilege or a claim of attorney work product with respect to such information so long as the Borrower notifies the Administrative Agent that such information is being withheld and the reason therefor). If and to the extent that Holdings is required to file periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, the Borrower shall be deemed to have satisfied its obligation to deliver the financial statements referred to in clauses (a), (b) and (e) upon the filing of such reports with the Securities and Exchange Commission.
Appears in 1 contract
Samples: Credit Agreement (PACS Group, Inc.)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year fiscal year and the related consolidated statements of income, stockholders’ ' equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USA, LLP or other independent public accountants of nationally recognized standing as approved by Administrative Agent (without a “"going concern” " or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year fiscal year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of Borrower's previous fiscal year, all certified by the Borrower’s previous Fiscal Yearchief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of the Borrower a Responsible Officer, (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance compliance, or lack thereof, with the financial covenants set forth in Article VI, VI and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Borrower's audited financial statements of the Borrower and its Subsidiaries, referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver furnish to the Administrative Agent and (for distribution to each Lender:Lender through the Administrative Agent):
(a) as soon as available and in any event within on or before the date that is 90 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual an audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet and audited consolidated statements of operations and comprehensive income and cash flows of the Borrower and its Subsidiaries as of the end of and for such Fiscal Year and the related consolidated statements of incomefiscal year, stockholders’ equity and cash flows (together in each case with all footnotes thereto) of consolidating information regarding the Borrower and its Subsidiaries for such Fiscal Yearrequired 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 Yearfiscal year, all in reasonable detail and reported on by BDO USA, PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized national standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception, or any exception as to the scope of such audit) , in each case other than a qualification related solely to the scheduled or accelerated maturity of Loans and Commitments, as applicable), to the effect that such consolidated financial statements present fairly in all material respects the financial position condition as of the end of and the for such year and results of operations and cash flows of the Borrower and its Subsidiaries for such Fiscal Year (as applicable) on a consolidated basis (as applicable) in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standardsconsistently applied;
(b) as soon as available and in any event within with respect to each of the first three fiscal quarters of each fiscal year, on or before the date that is 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrowersuch fiscal quarter, an unaudited consolidated balance sheet and unaudited consolidated statements of operations and comprehensive income and cash flows of the Borrower and its Subsidiaries as of the end of and for such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements then elapsed portion of income the fiscal year, in each case with all *Confidential Treatment Requested. Omitted portions filed with the Commission. consolidating information regarding the Borrower and its 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 a Financial Officer as presenting fairly in all material respects, as applicable, the financial condition as of the end of and for such fiscal quarter and such portion of the fiscal year and results of operations and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the then elapsed portion absence of such Fiscal Year and, commencing on December 31, 2017, footnotes; together with comparative figures for the corresponding Fiscal Quarter customary management’s discussion and the corresponding portion analysis describing results of the Borrower’s previous Fiscal Yearoperations;
(c) concurrently with the not later than five days after any delivery of the financial statements referred to in subsections under paragraph (a) and or (b) above or a certificate of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower Financial Officer (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate has occurred and, if such a Default or an Event of Default then existshas occurred and is continuing, specifying the details thereof and the any action which the Borrower has taken or proposes proposed to take be taken with respect thereto, thereto and (ii) setting forth in reasonable detail reasonably detailed calculations demonstrating compliance with the financial covenants set forth contained in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent Sections 6.10 and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate6.11;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 later than 90 days after the end commencement of each Fiscal Year fiscal year of the Borrower, a 12 month detailed consolidated annual budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management such fiscal year (including a projected consolidated balance sheet and consolidated statements of projected operations, comprehensive income and cash flows as of the Borrower end of and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Yearfiscal year and setting forth the material assumptions used for purposes of preparing such budget);
(ge) promptly following after the written request same become publicly available, copies of all periodic and other reports, proxy statements and registration statements (other than amendments to any registration statement (to the extent such registration statement, in the form it became effective, is delivered to the Administrative Agent), a list exhibits to any registration statement and, if applicable, any registration statement on Form S-8) filed by the Borrower or any of all Persons purchasing Hydrocarbons from its Subsidiaries with the SEC or with any Loan Partynational securities exchange, or distributed by the Borrower or any of its Subsidiaries to the holders of its Equity Interests generally, as the case may be; and
(hf) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower and its Subsidiaries, or compliance with the terms of any of its Subsidiaries 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 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; provided that (i) to the extent such information relates to a parent of the Borrower, such information is accompanied by consolidating information, which may be unaudited, that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to the Borrower and its Subsidiaries on a standalone basis, on the other hand, and (ii) to the extent such information is in lieu of information required to be provided under Section 5.01(a), such materials are accompanied by a report and opinion of PricewaterhouseCoopers 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 scheduled or accelerated maturity of Loans and Commitments. *Confidential Treatment Requested. Omitted portions filed with the Commission. 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 xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver or cause to be delivered to the Administrative Agent and each Lender:Lender (either in paper or electronic (PDF) form as the Lender may request):
(a) as soon as available practicable and in any event within 90 ninety (90) days after the end of each Fiscal Year of the BorrowerYear, a copy of the (r) an annual audited report for such Fiscal Year consolidated financial statements for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis prepared in accordance with GAAP Applicable Accounting Principles, and that (s) an annual operating budget for the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standardsupcoming Fiscal Year (specifically identifying the proceeds of the Loan used for general working capital purposes);
(b) as soon as available and in any event within 45 forty-five (45) days after the end of each of every Fiscal Quarter (other than the first three fourth Fiscal Quarters Quarter) of each Fiscal Year Year, management prepared unaudited consolidated quarterly financial statements of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery as soon as it obtains knowledge of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)any Default, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date notice of such certificate andDefault, if such a Default or together with an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth outline in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of action it is taking to remedy such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance CertificateDefault;
(d) concurrently with the delivery as soon as it obtains knowledge of the financial statements referred to in subsection (b) of this Sectionany Material Adverse Change, a certificate signed by the principal executive officer or the principal financial officer of the Borrower prompt written notice thereof setting forth as a description of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreementMaterial Adverse Change;
(e) concurrently as soon as it obtains knowledge of any judgment, order or award or the commencement of any proceeding or dispute affecting any Collateral or the Borrower which, either alone or when aggregated with all other such proceedings, has resulted in, or could result in, (t) a Material Adverse Effect, or (u) any single or multiple judgments, orders or awards ordering the delivery Borrower to pay more than $50,000 (or the equivalent in foreign currency) in the aggregate, notice of such judgments, orders or awards or proceedings; in each case, if requested by the Lender, together with an outline in reasonable detail of the financial statements referred to in subsection (b) particulars thereof, copies of this Sectionall pleadings, a certificate signed by the principal executive officer or the principal financial officer Borrower’s legal counsel’s assessment of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect merits thereof (to the relevant quarterly period;extent such assessment can be provided without impairing attorney-client privilege) and the action the Borrower is taking in respect thereof; and
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefortime to time, such other additional information and documents regarding the results of operations, business affairs and financial position of the Borrower or any of its Subsidiaries Collateral as the Administrative Agent or any Lender may reasonably request, provided such request is in accordance with Section 11.5.
Appears in 1 contract
Samples: Loan Agreement (Liberty Silver Corp)
Financial Statements and Other Information. The Borrower Company will deliver furnish to each Credit Party the Administrative Agent following, provided that the Company need not furnish copies of the information referred to in this Section if on or before the applicable day set forth below, such information is available (A) in the case of the information referred to in subsections (a), (b), (i) and each Lender(j) below, either on XXXXX or on the Company’s web site, and (B) in the case of the information referred to in subsections (c) and (d) below, on the Company’s web site:
(a) as soon as available and in any event within 90 120 days after the end of each Fiscal Year of fiscal year, the Borrower, a copy of the Company’s annual audited report for such Fiscal Year for the Borrower proxy and its Subsidiaries, Form 10-K containing a consolidated balance sheet statement of financial position of the Borrower Company and its Consolidated Subsidiaries as of the end of such Fiscal Year fiscal year and the related consolidated statements of income, stockholdersshareholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USADeloitte & Touche, LLP or other another independent registered public accountants accounting firm of nationally recognized standing (without a “going concern” or like qualification, qualification or exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower Company and its Consolidated Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standardsconsistently applied;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the first three fiscal quarters of each fiscal year, the Company’s Form 10-Q containing a consolidated statement of financial position of the Company and its Consolidated Subsidiaries as of the end of such fiscal quarter and the related statements of income and cash flows for such fiscal quarter and for the portion of the Company’s fiscal year ended at the end of such fiscal quarter;
(c) as soon as available and in any event within 120 days after the end of each fiscal year of each Subsidiary Borrower, a 12 month budget the Statutory Statement of such Subsidiary Borrower for such fiscal year and as filed with the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management insurance department of the Borrower State of domicile of such Subsidiary Borrower;
(d) as soon as available and detailing in any event within 60 days after the projected cash flows and capital expenditures end of each of the first three quarterly fiscal quarters of each Subsidiary Borrower, quarterly Statutory Statements of such Subsidiary Borrower and its Subsidiaries for such current Fiscal Yearfiscal quarter and as filed with the insurance department of the State of domicile of such Subsidiary Borrower;
(e) promptly after the financial statements referred to in clauses (a) and (b) above have been made available to the Credit Parties either through XXXXX or the Company’s web site (but in no event later than 120 days after the end of the relevant fiscal year or 60 days after the end of the relevant fiscal quarter, as applicable) or, in the event that the Company furnishes copies thereof to the Credit Parties, simultaneously with the delivery thereof, a certificate of the chief financial officer or the controller of the Company (i) setting forth in reasonable detail the calculations required to establish whether the Company was in compliance with the requirements of Section 6.8 on the date of such financial statements and (ii) stating whether any Default exists on the date of such certificate and, if any Default then exists, setting forth the details thereof and the action which the Company is taking or proposes to take with respect thereto;
(f) promptly after the financial statements referred to in clause (a) above have been made available to the Credit Parties either through XXXXX or the Company’s web site (but in no event later than 120 days after the end of the relevant fiscal year) or, in the event that the Company furnishes copies thereof to the Credit Parties, simultaneously with the delivery thereof, a certificate of the chief financial officer or the controller of the Company identifying each Subsidiary which is then a Material Subsidiary;
(g) promptly following after the financial statements referred to in clause (a) above have been made available to the Credit Parties either through XXXXX or the Company’s web site (but in no event later than 120 days after the end of the relevant fiscal year) or, in the event that the Company furnishes copies thereof to the Credit Parties, simultaneously with the delivery thereof, a statement of the independent registered public accounting firm which reported on such statements to the effect that in the course of their audit of such statements, nothing came to their attention that caused them to believe that the Company was not in compliance with the requirements of Section 6.8, insofar as such requirements relate to accounting matters;
(h) within five days after any officer of the Company obtains knowledge that any Default has occurred and is continuing, a certificate of the chief financial officer or the controller of the Company setting forth the details thereof and the action which the Company is taking or proposes to take with respect thereto;
(i) written request notice of any Proceedings promptly after a determination by the Company or the applicable Subsidiary Borrower that (i) such Proceedings, if determined adversely to the Company or any of its Material Subsidiaries individually or in the aggregate, reasonably could be expected to have a Material Adverse Effect and (ii) there exists a reasonable possibility of such adverse determination.
(j) promptly after being filed by the Company with the Securities and Exchange Commission, copies (without exhibits thereto) of any registration statement (other than any registration statement on Form S 8 or its equivalent) or any report on Form 8 K (or its equivalent); provided that the Company need not furnish such copies to the extent such registration statements or reports are made available to the Credit Parties either on XXXXX or the Company’s web site;
(k) if and when any member of the ERISA Group (i) gives or is required to give notice to the PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with respect to any Plan (other than any Non-Material Subsidiary Plan) which might constitute grounds for a termination of such Plan (other than any Non-Material Subsidiary Plan) under Title IV of ERISA, or knows that the plan administrator of any Plan (other than any Non-Material Subsidiary Plan) has given or is required to give notice of any such reportable event, a copy of the notice of such reportable event given or required to be given to the PBGC; (ii) receives notice of complete or partial withdrawal liability under Title IV of ERISA or notice that any Multiemployer Plan (other than any Non-Material Subsidiary Plan) is in reorganization, is insolvent or has been terminated, a copy of such notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent to terminate, impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to administer any Plan (other than any Non-Material Subsidiary Plan), a copy of such notice; (iv) applies for a waiver of the minimum funding standard under Section 412 of the Internal Revenue Internal Revenue Code, a copy of such application; (v) gives notice of intent to terminate any Plan (other than any Non-Material Subsidiary Plan) under Section 4041(c) of ERISA, a copy of such notice and other information filed with the PBGC; (vi) gives notice of withdrawal from any Plan (other than any Non-Material Subsidiary Plan) pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any payment or contribution to any Plan (other than any Non-Material Subsidiary Plan) or Multiemployer Plan (other than any Non-Material Subsidiary Plan) or in respect of any Benefit Arrangement or makes any amendment to any Plan (other than any Non-Material Subsidiary Plan) or Benefit Arrangement which has resulted or could result in the imposition of a Lien or the posting of a bond or other security under ERISA or the Internal Revenue Code, provided, however, that in the case of a Benefit Arrangement established or maintained by or for a Subsidiary (other than a Subsidiary Borrower) such action or inaction has resulted or could result in the imposition of such a Lien or the posting of such a bond or other security in excess of $25,000,000, a certificate of the chief financial officer or the controller of the Company setting forth details as to such occurrence and action, if any, which the Company or applicable member of the ERISA Group is required or proposes to take;
(l) furnish to the Administrative Agent promptly such other information with documentation required by bank regulatory authorities under applicable “know your customer” and Anti Money Laundering rules and regulations (including, without limitation, the USA Patriot Act), as from time to time may be reasonably requested by the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(hm) promptly following any request therefor, from time to time such other additional information regarding the results of operations, business affairs and financial position or business of the Borrower or any of Company and its Subsidiaries as the Administrative Agent or Agent, at the request of any Lender Lender, may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Allstate Corp)
Financial Statements and Other Information. (i) The Borrower will deliver Loan Parties and each Subsidiary shall keep proper books and records in which true and complete entries shall be made of all dealings or transactions of or in relation to the Administrative Collateral and the business of the Loan Parties and their Subsidiaries in accordance with GAAP, and the Loan Parties shall furnish or cause to be furnished to Agent and each LenderLenders:
(aA) as soon as available and available, but in any event within 90 days after the end of each Fiscal Year fiscal year of Borrower (commencing with the fiscal year ended December 31, 2020), consolidated balance sheets of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower Loan Parties and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its their Subsidiaries as of at the end of such Fiscal Year fiscal year, and the related consolidated statements of incomeincome or operations, stockholdersshareholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported prepared in accordance with GAAP, such consolidated statements to be audited by and accompanied by a report of Wxxxxx Sxxxx & Bxxxx, PC or another independent certified public accounting firm of recognized national standing, which review and report shall be prepared in accordance with the Statements on Standards for Accounting and Review Services Promulgated by BDO USAthe Accounting and Review Services Committee of the American Institute of Certified Public Accountants, LLP or other independent public and shall state that the accountants are not aware of nationally recognized standing (without a any material modifications that should be made in order for the financial statements to be in conformity with GAAP, and shall not be subject to any “going concern” or like qualification, exception or explanation and without any qualification or exception as to (other than a “going concern” statement, explanatory note or like qualification or exception resulting solely from an upcoming maturity date occurring within one year from the scope of time such auditopinion is delivered or anticipated (but not actual) to the effect that such financial statements present fairly in all material respects the financial position and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standardscovenant non-compliance);
(bB) as soon as available and available, but in any event within 45 days after the end of each fiscal quarter of Borrower (commencing with the fiscal quarter ended September 30, 2020), consolidated and consolidating balance sheets of the first three Fiscal Quarters Loan Parties and each Subsidiary as at the end of each Fiscal Year such fiscal quarter, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter, and for the portion of the Borrowerfiscal year then ended, an unaudited consolidated balance sheet setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year, all in reasonable detail, certified by an authorized officer of Borrower as fairly presenting the financial condition, results of operations, shareholders’ equity and its Subsidiaries cash flows of the Loan Parties and each Subsidiary as of the end of such Fiscal Quarter fiscal quarter in accordance with GAAP, subject only to normal year-end audit adjustments and the related unaudited consolidated statements absence of income and cash flows footnotes; and
(ii) (A) Simultaneously with the Loan Parties’ delivery of the Borrower and its Subsidiaries quarterly financial statements described in Section 9(f)(i)(B) above for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andeach fiscal quarter, commencing on with the fiscal quarter ending December 31, 20172020, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred Loan Parties shall also deliver to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), Agent a Compliance Certificate signed (the “Compliance Certificate”) certified by an officer of Borrower, in the principal executive form attached hereto as Exhibit A, and (B) within five (5) Business Days following the last day of each calendar month, commencing with the month ended November 30, 2020, the Loan Parties shall deliver to the Agent a certificate of the chief financial officer or the principal financial other senior executive officer of the Borrower (i) certifying as to whether there exists and is continuing a Default the Borrower’s compliance (or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (iinon-compliance) setting forth in reasonable detail calculations demonstrating compliance with the Minimum Cash Balance financial covenants covenant set forth in Article VI, (iiion Schedule 9(p) specifying any change in the identity of the Subsidiaries hereto as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative immediately preceding calendar month.
(iii) The Loan Parties shall promptly notify Agent and the Lenders on the Closing Date or as in writing of the most recent Fiscal Year details of (A) any loss, damage, investigation, action, suit, proceeding or Fiscal Quarter, as the case may beclaim which could reasonably be expected to result in a Material Adverse Effect, and (B) the occurrence of any Default or Event of Default.
(iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly Promptly following any request therefor, the Loan Parties also shall furnish or cause to be furnished to Agent such other information regarding the results of operations, business affairs and financial position conditions of the Borrower and the other Loan Parties as the Agent may reasonably request. Subject to the provisions of the immediately succeeding clause (v), Agent is hereby authorized to deliver a copy of any financial statement or any other information relating to the business of its any Loan Party or any Subsidiary to each Lender and to any court or other government agency or to any participant or permitted assignee or prospective participant or permitted assignee. Each Loan Party hereby irrevocably authorizes and directs all accountants or auditors to deliver to Agent and Lenders, at the Loan Parties’ expense, copies of the financial statements of the Loan Parties and their Subsidiaries and any reports or management letters prepared by such accountants or auditors on behalf of the Loan Parties and to disclose to Agent and Lenders such information as they may have regarding the Administrative business of the Loan Parties and the Subsidiaries, and the Loan Parties hereby irrevocably authorize Agent and Lenders to contact such accountants and auditors directly. Any documents, schedules, invoices or other papers delivered to Agent or any Lender may reasonably requestbe destroyed or otherwise disposed of by Agent or such Lender in accordance with Agent’s or such Lender’s normal document retention policies.
(v) The Loan Parties hereby acknowledge that (a) the Agent may make available to the Lenders materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks/IntraAgency, SyndTrak or another similar electronic system (the “Platform”) and (b) as of the Agreement Date the Lenders wish only to receive information that (A) is publicly available, (B) is not material with respect to the Loan Parties or their respective securities for purposes of applicable foreign, United States and Canada federal, provincial, territorial and state securities laws with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, or (C) constitutes information of a type that would be publicly available if the Loan Parties were public reporting companies (as determined by the Borrower in good faith) (such information, “Public Side Information”). Notwithstanding anything to the contrary contained herein, the Loan Parties hereby agree that they will use commercially reasonable efforts to ensure that all Borrower Materials contain only Public Side Information and to clearly and conspicuously mxxx the same as “PUBLIC SIDE” or “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC SIDE” or “PUBLIC” shall appear prominently on the first page thereof (it being understood that by marking Borrower Materials “PUBLIC SIDE” or “PUBLIC”, the Borrower shall be deemed to have authorized the Agent and the Lenders to treat the Borrower Materials as only containing Public Side Information and that any Borrower Materials that are not marked “PUBLIC SIDE” or “PUBLIC” shall be deemed to contain material non-public information (within the meaning of United States and Canada federal, provincial, territorial and state securities laws, as applicable) and shall not be suitable for posting by the Agent on a portion of the Platform designated “Public Side Information”. Notwithstanding anything herein to the contrary, financial statements delivered pursuant to Sections 9(f)(i) and 9(f)(ii) and Compliance Certificates delivered pursuant to Section 9(f)(iii) shall be deemed to be Public Side Information suitable for posting on a portion of the Platform designated “Public Side Information”. Notwithstanding the foregoing to the contrary, the Lenders may at any time notify the Agent and the Borrower in writing that the Lenders no longer intend to be limited by the provisions of the immediately preceding paragraph and, from and after the date of such notice (the “Opt In Date”), the Borrower shall commence to deliver to the Agent and the Lenders the reports and information specified on Schedule 9(f)((v) hereof at the respective times and for the respective periods indicated on such Schedule. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER THE AGENT NOR ANY OF ITS AGENT-RELATED PERSONS WARRANTS THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE AGENT OR ANY OF ITS AGENT-RELATED PERSONS IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE AGENT OR ANY OF ITS AGENT-RELATED PERSONS HAVE ANY LIABILITY TO ANY CREDIT PARTY, ANY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY CREDIT PARTY’S OR THE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. The Agent agrees that the receipt of the communications by the Agent at its e-mail address set forth in Schedule 15(a) hereof shall constitute effective delivery of the communications to the Agent for purposes of the Loan Documents. Each Lender agrees that receipt of notice to it (as provided in the next sentence) specifying that the communications have been posted to the Platform shall constitute effective delivery of the communications to such Lender for purposes of the Loan Documents. Each Lender agrees to notify the Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and that the foregoing notice may be sent to such e-mail address. Nothing herein shall prejudice the right of the Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.
(vi) Anything to the contrary notwithstanding, the obligations in clause (i) of this Section 9(f) may be satisfied with respect to financial information of the Borrower and the Subsidiaries by furnishing the Borrower’s Form 10-K or 10-Q, as applicable, filed with the Securities Exchange Commission.
Appears in 1 contract
Samples: Loan and Security Agreement (GTY Technology Holdings Inc.)
Financial Statements and Other Information. The Borrower will shall deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the BorrowerYear, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, LLP or other independent public accountants of nationally recognized standing reasonably acceptable to the Required Lenders (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the BorrowerQuarter, an unaudited consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and for the then elapsed portion of such the Fiscal Year andYear, commencing on December 31setting forth in each case the comparative form with the consolidated balance sheets, 2017, together with comparative figures statements of income and cash flows for the corresponding Fiscal Quarter and comparable periods in the corresponding portion of the Borrower’s previous Fiscal Year;
(c) for the financial statements referred to in clause (a) of this Section, a management’s discussion and analysis of the financial condition and results of operations for such Fiscal Year, as compared to the previous Fiscal Year and budgeted amounts (including commentary on (x) any material developments or proposals affecting the Borrower and its Subsidiaries, as applicable, or their businesses and (y) the reasons for any significant variations from the projections for such period and the figures for the corresponding period in the previous Fiscal Year); 57 Patriot National Credit Agreement
(d) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection through (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer a Responsible Officer of the Borrower (iA) certifying as to whether there exists and is continuing a an Unmatured Event of Default or an Event of Default on the date of such certificate and, if such a an Unmatured Event of Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has Loan Parties have taken or proposes propose to take with respect thereto, (iiB) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VISection 11.17, (iiiC) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Effective Date or as of the most recent Fiscal Year or Fiscal Quarter, Quarter as the case may be, and (ivD) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, the Loan Parties shall use commercially reasonable efforts to deliver a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of their examination of such financial statements of any Event of Default in respect of the financial covenants set forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly periodin Section 11.17;
(f) as soon as available and in any event within 60 90 days after the end of the Fiscal Year, the Borrower’s operating budget for (i) the succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow and (ii) each Fiscal Year Quarter of the succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow;
(g) promptly, and in any event within five Business Days after receipt thereof by the Borrower or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof;
(h) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the SEC, or with any national securities exchange, or distributed by the Borrower, a 12 month budget for to its shareholders generally, as the Borrower and its Subsidiaries for case may be; provided, that such filings shall be deemed delivered to the current Fiscal Year prepared by Administrative Agent on the management earlier of the Borrower date such statements or reports are available at (i) xxx.xxx.xxx and detailing (ii) the projected cash flows Borrower’s website at xxx.xxxxxx.xxx and capital expenditures notice of such availability is sent to the Administrative Agent;
(i) with respect to each customer of the Borrower and its Subsidiaries that accounts for greater than 15% of the aggregate Reference Premiums Written for the Borrower and its Subsidiaries, within ten Business Days after the end of each month, a report in form satisfactory 58 Patriot National Credit Agreement to the Administrative Agent setting forth the percentage concentration of the Reference Premiums Written for each such current Fiscal Yearcustomer of the Borrower and its Subsidiaries as of the last day of each month out of the aggregate amount of the Reference Premiums Written for all customers of the Borrower and its Subsidiaries as of the last day of each month;
(gj) promptly following the written request receipt of the Administrative Agentany form of material notice, a list of all Persons purchasing Hydrocarbons summons, citation, proceeding or order received from any Loan Party; andState Insurance Regulatory Agency or any other Governmental Authority that would materially and adversely affect the Lenders or the Borrower or any of its Subsidiaries;
(hk) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any Subsidiary, or compliance with the terms of its Subsidiaries the Loan Documents, as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 105 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report financial statements for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholderspartners’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, KPMG LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each any Fiscal Year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(hd) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request; and
(e) simultaneously with the GLGT Acquisition, a certified copy of the GLGT Partnership Agreement. So long as the Borrower is required to file periodic reports under Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended, the Borrower’s obligation to deliver the financial statements referred to in clauses (a) and (b) shall be deemed satisfied upon the filing of such financial statements in the XXXXX system and the giving by the Borrower of notice to the Lenders and the Administrative Agent as to the public availability of such financial statements from such source.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Tc Pipelines Lp)
Financial Statements and Other Information. The Borrower Borrowers will deliver to the Administrative Agent and (who will distribute to each Lender:):
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the BorrowerBorrowers, (i) a copy of the annual audited report for such Fiscal Year for the Borrower Borrowers and its their Subsidiaries, containing a consolidated balance sheet of the Borrower Borrowers and its their Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower Borrowers and its their Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, Xxxxxxx Xxxxxxx LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower Borrowers and its their Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP 75 consistently applied and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standardsstandards and (ii) a report containing management’s discussion and analysis of such financial statements for the Fiscal Year then ended which may be a copy of the one included in Fortegra’s public filing with the SEC;
(b) as soon as available (i) and in any event within 120 days after the end of each Fiscal Year of each Regulated Insurance Company, the Annual Statement of such Regulated Insurance Company for such Fiscal Year as filed with the Applicable Insurance Regulatory Authority in such Regulated Insurance Company’s state of domicile, together with the signature of the Chief Financial Officer of the Borrowers certifying that such Annual Statement presents the financial condition and results of operations of such Regulated Insurance Company in accordance with SAP, and (ii) the opinion of an independent public accounting firm of nationally recognized standing who has audited the Annual Statement referenced in clause (i) immediately above (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit), but only to the extent such Regulated Insurance Company is required by applicable law to obtain, or otherwise elects to obtain, such an audit and opinion;
(c) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the BorrowerBorrowers, commencing with the Fiscal Quarter ended June 30, 2012, (i) an unaudited consolidated balance sheet of the Borrower Borrowers and its their Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows (together with all footnotes thereto) of the Borrower Borrowers and its their Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of Borrowers’ previous Fiscal Year and in each case prepared in accordance with GAAP consistently applied and (ii) a report containing management’s discussion and analysis of such financial statements for the BorrowerFiscal Quarter then ended which may be a copy of the one included in Fortegra’s previous public filing with the SEC;
(d) as soon as available and in any event within 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of each Regulated Insurance Company, commencing with the Fiscal Quarter ended June 30, 2012, quarterly financial statements of such Regulated Insurance Company for such Fiscal Quarter and as filed with the Applicable Insurance Regulatory Authority in such Regulated Insurance Company’s state of domicile, together with the signature of the Chief Financial Officer of the Borrowers certifying that such Annual Statement presents the financial condition and results of operations of such Regulated Insurance Company in accordance with SAP;
(e) as soon as available, and in any event no more than 60 days after the end of each Fiscal Year of the Borrowers, an annual budget of the Borrower and its Subsidiaries on a consolidated basis, including forecasts prepared by management of the Borrowers of consolidated balance sheets, statements of income or operations and cash flows, in each case in form and substance satisfactory to the Administrative Agent, of the Borrowers and their Subsidiaries on a quarterly basis for the immediately succeeding Fiscal Year;
(cf) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (bc) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate substantially in the form of Exhibit 6.1(f) signed by the principal executive officer or the principal financial officer a Responsible Officer of the Borrower Borrowers, (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has Borrowers have taken or proposes propose to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may beARTICLE VII, and (iviii) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered latest delivery of the Borrowers’ audited financial statements of the Borrower and its Subsidiaries, referred to in clause (a) above and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate; provided however, that no action shall be required by the Borrowers under this clause (iii) to the extent any such change in GAAP or the application thereof does not affect or apply to the Borrowers and their Subsidiaries, including the presentation by the Borrowers of their financial statements;
(dg) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agentabove, a list of all Persons purchasing Hydrocarbons sales or other dispositions of assets made pursuant to Section 8.6(i) of this Agreement by the Borrowers and their Subsidiaries during the Fiscal Year most recently ended and for which the proceeds of such sales or dispositions are used to replace assets, including a description of the type of replacement assets and amount and type of other proceeds, if any, received from any Loan Party; andsuch sales or other dispositions;
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower Borrowers or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request. In the event that any financial statement delivered pursuant to clauses (a) or (c) immediately above or any Compliance Certificate is shown to be inaccurate during the term of this Agreement, and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then (i) the Borrowers shall immediately deliver to the Administrative Agent a corrected Compliance Certificate for such Applicable Period, (ii) the Applicable Margin for such Applicable Period shall be determined in accordance with the corrected Compliance Certificate, and (iii) the Borrowers shall immediately pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the Administrative Agent to the Obligations. This Section 6.1 shall not limit the rights of the Administrative Agent or the Lenders with respect to Section 2.12(b) and ARTICLE IX.
Appears in 1 contract
Financial Statements and Other Information. The Each Borrower will deliver furnish to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 135 days after the end of each Fiscal Year fiscal year of such Borrower (but in the Borrowercase of XL Capital, a copy within 100 days after the end of each fiscal year of XL Capital), the annual audited report for consolidated balance sheet and related statements of operations, stockholders' equity and cash flows of such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearyear, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year (if such figures were already produced for such corresponding period or periods) (it being understood that delivery to the Lenders of XL Capital'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 XL Capital 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 in reasonable detail and reported on by BDO USA, PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized 364-DAY CREDIT AGREEMENT national standing (without a “"going concern” " or like qualification, qualification or exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial position condition and the results of operations of the such Borrower and its consolidated Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP or (in the case of XL Europe, XL Insurance and that XL Re) SAP, as the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standardscase may be, 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 fiscal quarters of each Fiscal Year fiscal year of the such Borrower, an unaudited the consolidated balance sheet and related statements of the operations, stockholders' equity and cash flows of such Borrower and its consolidated Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andthe fiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for (or, in the case of the balance sheet, as of the end of) the corresponding Fiscal Quarter period or periods of the previous fiscal year (if such figures were already produced for such corresponding period or periods), all certified by a Financial Officer of such Borrower as presenting fairly in all material respects the financial condition and results of operations of such Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP or (in the case of XL Europe, XL Insurance and XL Re) SAP, as the case may be, consistently applied, subject to normal year-end audit adjustments and the corresponding portion absence of footnotes (it being understood that delivery to the Borrower’s previous Fiscal YearLenders of XL Capital'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 XL Capital 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) concurrently with the any delivery of the financial statements referred to in subsections under clause (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection or (b) of this Section), a Compliance Certificate certificate signed on behalf of each Borrower by the principal executive officer or the principal financial officer of the Borrower a Financial Officer (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate has occurred and, if such a Default or an Event of Default then existshas occurred, specifying the details thereof and the any action which the Borrower has taken or proposes proposed to take be taken with respect thereto, (ii) setting forth in reasonable detail reasonably detailed calculations demonstrating compliance with the financial covenants set forth in Article VISections 7.03, 7.05, 7.06 and 7.07 and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or (in the case of XL Europe, XL Insurance and XL Re) SAP or in the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, referred to in Section 4.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently with the any delivery of the financial statements referred under clause (a) of 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 in subsection the extent required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by such Borrower or any of its respective Subsidiaries with the SEC, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any U.S. or other securities exchange, or distributed by such Borrower to its shareholders generally, as the case may be; 364-DAY CREDIT AGREEMENT
(f) concurrently with any delivery of financial statements under clause (a) or (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of a Financial Officer of XL Capital, setting forth on a consolidated basis for XL Capital and its consolidated Subsidiaries as of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions end of the Loan Parties, fiscal year or quarter to which such certificate relates (i) the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market aggregate book value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied of assets which are subject to Liens permitted under any credit support document, Section 7.03(g) and the counterparty aggregate book value of liabilities which are subject to each such agreement;
Liens permitted under Section 7.03(g) (eit being understood that the reports required by paragraphs (a) concurrently with the delivery of the financial statements referred to in subsection and (b) of this Section, a certificate signed by Section shall satisfy the principal executive officer or the principal financial officer requirement of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes this clause (i) of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
this paragraph (f) as soon as available if such reports set forth separately, in accordance with GAAP, line items corresponding to such aggregate book values) and in any event within 60 days after (ii) a calculation showing the end portion of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its such aggregate amounts which portion is attributable to transactions among wholly-owned Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan PartyXL Capital; and
(hg) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower XL Capital or any of its Subsidiaries Subsidiaries, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver furnish to each Lender through the Administrative Agent and each LenderAgent:
(a) as soon as available and but in any event within 90 120 days after the end of each Fiscal Year fiscal year of the Borrower, a copy its audited consolidated statement of the annual audited report for such Fiscal Year for the Borrower financial position and its Subsidiariesrelated statements of earnings, containing a consolidated balance sheet of the Borrower changes in shareholders’ equity and its Subsidiaries cash flows as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearyear, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USA, Ernst & Young LLP or other independent public accountants of nationally recognized national standing (without a “going concern” or like qualification, qualification or exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial position and the position, results of operations and cash flows of the Borrower and its consolidated Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and GAAP; provided, however, that the examination by Borrower may deliver, in lieu of the foregoing, the annual report of the Borrower for such accountants in connection fiscal year on Form 10-K filed with such consolidated the SEC, but only so long as the financial statements has been made contained in accordance with generally accepted auditing standardssuch annual report on Form 10-K are substantially the same in content as the financial statements referred to in the preceding provisions of this paragraph (a);
(b) as soon as available and but in any event within 45 60 days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the Borrower, an unaudited its consolidated balance sheet statement of the Borrower financial position and its Subsidiaries related statements of earnings and cash flows as of the end of and for such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements then elapsed portion of income the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers as presenting fairly in all material respects the financial position, results of operations and cash flows of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided, however, that the Borrower may deliver, in lieu of the foregoing, the quarterly report of the Borrower for such Fiscal Quarter and fiscal quarter on Form 10-Q filed with the then elapsed portion SEC, but only so long as the financial statements contained in such quarterly report on Form 10-Q are substantially the same in content as the financial statements referred to in the preceding provisions of such Fiscal Year and, commencing on December 31, 2017, together with comparative figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Yearthis paragraph (b);
(c) concurrently with the each delivery of the financial statements referred to in subsections under clause (a) and or (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of a Financial Officer of the Borrower substantially in the form of Exhibit H hereto (i) certifying as to whether there exists whether, to the best knowledge of such Financial Officer, a Default has occurred and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then existshas occurred and is continuing, specifying the details thereof and the any action which the Borrower has taken or proposes proposed to take be taken with respect thereto, (ii) setting forth in reasonable detail reasonably detailed calculations demonstrating compliance with the financial covenants set forth in Article VI, Section 6.05 and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, 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 Compliance Certificatecertificate;
(d) concurrently promptly after the same become publicly available, copies of all periodic and other reports on Forms 8-K, 10-Q and 10-K and all proxy statements filed by the Borrower or any Subsidiary with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed SEC or any other documents distributed by the principal executive officer Borrower to its shareholders generally which contain the equivalent information to that contained in such Forms or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Partyproxy statements; and
(he) promptly following any request therefor, such other information regarding the results of operations, business affairs operations and financial position condition of the Borrower or any Subsidiary, or compliance with the terms of its Subsidiaries this Agreement or any other Loan Document, as the Administrative Agent or any Lender may reasonably request. Information required to be delivered pursuant to this Section 5.01 shall be deemed to have been delivered to the Lenders on the date on which the Borrower provides written notice to the Lenders that such information has been posted on the Borrower’s website on the Internet at xxxx://xxx.xxx.xxx or is available on the website of the SEC at xxxx://xxx.xxx.xxx (to the extent such information has been posted or is available as described in such notice). Information required to be delivered pursuant to this Section 5.01 may also be delivered by electronic communication pursuant to procedures approved by the Administrative Agent pursuant to Section 9.01(b).
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) : as soon as available and in any event within 90 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower and its Subsidiaries, containing a consolidated and unaudited consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year fiscal year and the related consolidated and unaudited consolidating statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USA, LLP Ernst & Young or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year fiscal year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) ; as soon as available and in any event within 45 days after the end of each fiscal quarter of each fiscal year of the first three Fiscal Quarters of each Fiscal Year of Borrower (other than the Borrowerlast fiscal quarter), an unaudited consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter fiscal quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) fiscal year, all certified by the chief financial officer, treasurer or controller of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of the Borrower a Responsible Officer, (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, VI and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Borrower’s audited financial statements of the Borrower and its Subsidiaries, referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) certificate; concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed of the accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of their examination of such financial statements of any Default or Event of Default (which certificate may be limited to the extent required by accounting rules or guidelines); promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent dateto its shareholders generally, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent case may reasonably request with respect to the relevant quarterly period;
(f) as soon as available be; and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.; and
Appears in 1 contract
Financial Statements and Other Information. The Lead Borrower will deliver furnish to the Administrative Agent and Agents for delivery to the Lenders, each Lenderof the following, provided that the Lead Borrower need not furnish copies of information referred to in subsections (a), (b), (g) or (m) if on or before the applicable day set forth below, such information is available either on XXXXX or on the Lead Borrower’s web site:
(a) as soon as available and in any event within 90 ninety-five (95) days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Lead Borrower and its Subsidiaries, a copy of its Form 10-K containing a consolidated the Consolidated balance sheet and related statements of the Borrower earnings, shareholders’ equity and its Subsidiaries cash flows as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearyear, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail audited and reported on by BDO USAErnst & Young, LLP or other another independent public accountants accountant of nationally recognized national standing (without a “going concern” or like qualification, qualification or exception or explanation and without any a qualification or exception as to the scope of such audit) to the effect that such Consolidated financial statements present fairly in all material respects the financial position condition and the results of operations of the Lead Borrower and its Subsidiaries for such Fiscal Year on a consolidated Consolidated basis in accordance with GAAP consistently applied, and that the examination a written statement by such accountants to the effect that such accountants have reviewed this Agreement and that in connection auditing such Consolidated financial statements, nothing came to their attention to cause them to believe that the Loan Parties had failed to comply with the terms, covenants, provisions or conditions of this Agreement insofar as they relate to accounting matters, except for those described in reasonable detail in such consolidated financial statements has been made in accordance with generally accepted auditing standardsstatement;
(b) as soon as available and in any event within 45 fifty (50) days after the end of each of the first three Fiscal Quarters of each Fiscal Year Year, its Form 10-Q containing the Consolidated balance sheet and related statements of earnings, and cash flows of the Borrower, an unaudited consolidated balance sheet of the Lead Borrower and its Subsidiaries Subsidiaries, as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such the Fiscal Year andYear, commencing on December 31, 2017, together with comparative figures for results to the corresponding same Fiscal Quarter Periods of the prior Fiscal Year, all certified by a Financial Officer of the Lead Borrower as presenting in all material respects the financial condition and results of operations of the Lead Borrower and its Subsidiaries in accordance with GAAP consistently applied, subject to normal year end audit adjustments and the corresponding portion absence of the Borrower’s previous Fiscal Yearfootnotes;
(c) within thirty (30) days after the end of each of fiscal month of the Lead Borrower and its Subsidiaries, if so requested by the Administrative Agent, Consolidated and consolidating balance sheet and related statements of operations, stockholders’ equity and cash flows of the Lead Borrower and its Subsidiaries, as of the end of and for such month and the elapsed portion of the Fiscal Year, with comparative results to the same Fiscal Periods of the prior Fiscal Year and to the Lead Borrower’s and its Subsidiaries’ budget for such Fiscal Year furnished pursuant to Section 5.1(e) hereof;
(d) concurrently with the any delivery of the financial statements referred to in subsections under clause (a) and or (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of a Financial Officer of the Lead Borrower in the form of Exhibit D (a “Compliance Certificate”)
(i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate has occurred and, if such a Default or an Event of Default then existshas occurred, specifying the details thereof and the any action which the Borrower has taken or proposes proposed to take be taken with respect thereto, (ii) setting forth in reasonable detail reasonably detailed calculations demonstrating compliance with respect to the financial covenants set forth in Article VIFixed Charge Coverage Ratio for such period (whether or not it is then required to be tested hereunder), (iii) specifying any change certifying that such financial statements present in all material respects the financial condition and results of operations of the Lead Borrower and its Subsidiaries in accordance with GAAP consistently applied for such period, subject, in the identity case of the Subsidiaries as of the quarterly statements, to normal year end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent audit adjustments and the Lenders on the Closing Date or as absence of the most recent Fiscal Year or Fiscal Quarterfootnotes, as the case may be, and (iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the mostly recently delivered Lead Borrower’s and its Subsidiaries’ audited financial statements of the Borrower and its Subsidiaries, referred to in Section 3.4 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
, and (dv) concurrently with containing either a certification that there has been no change to the information disclosed in the Information Certificate or any other Loan Document (or after the delivery of the financial statements referred first Compliance Certificate delivered pursuant to in subsection this subsection, as previously certified), or, if so, specifying all such changes, provided that, notwithstanding the foregoing, no such revisions or updates shall be deemed to have amended, modified, or superseded the Information Certificate as originally attached hereto (b) of this Section, a certificate signed by or after the principal executive officer or the principal financial officer delivery of the first Compliance Certificate delivered pursuant to this subsection, as previously certified), or to have cured any breach of warranty or representation resulting from the inaccuracy or incompleteness of the Information Certificate, unless and until the Administrative Agent shall have accepted in writing such revisions or updates to the Information Certificate; and provided further that the Administrative Agent shall be deemed to have accepted such revisions or updates unless the Administrative Agent delivers a written objection thereto to the Lead Borrower setting forth as within thirty (30) days after the date such revisions or updates have been received;
(e) within forty-five (45) days after the commencement of a recent date, a true and complete list of all Hedging Transactions each Fiscal Year of the Loan Parties, the material terms thereof a Consolidated and consolidating budget by month for such Fiscal Year (including a projected Consolidated and consolidating balance sheet and related statements of projected operations and cash flow as of the type, term, effective date, termination date end of and notional amounts or volumesfor such Fiscal Year), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(ef) concurrently with within seventeen (17) days (or such longer period as the delivery Administrative Agent may agree in its reasonable discretion, but in any event not to exceed twenty-five (25) days) after the end of the financial statements referred to in subsection (b) of this Sectioneach month, a certificate signed in the form of Exhibit C (a “Borrowing Base Certificate”) showing the Borrowing Base as of the close of business on the last day of the immediately preceding month, each such Borrowing Base Certificate to be certified as complete and correct on behalf of the Loan Parties by a Financial Officer of the Lead Borrower, provided, however, if and so long as an Event of Default has occurred and is continuing or if Excess Availability is less than twelve and one-half (12.5%) percent of the Loan Cap, the Administrative Agent may require that Borrowers furnish such Borrowing Base Certificate (showing the Borrowing Base as of the close of business on the last day of the immediately preceding week) weekly on Wednesday of each week;
(g) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the principal executive officer Lead Borrower or any other Loan Party 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, as the case may be;
(h) the financial and collateral reports described on Schedule 5.1(h) hereto, at the times set forth in such Schedule;
(i) with respect to each Permitted Acquisition, to the extent permitted by Applicable Law, as soon as available, but not less than ten (10) Business Days prior to the consummation of a Permitted Acquisition, written notice to the Administrative Agent of such Permitted Acquisition together with a copy of all business and financial information reasonably requested by the Administrative Agent and, in the event that the total consideration paid or payable in connection with such Permitted Acquisition (whether in cash, property or securities) exceeds $50,000,000 or the principal financial officer total consideration paid or payable in connection with such Permitted Acquisition together with all other Permitted Acquisitions consummated after the Effective Date (whether in cash, property or securities) exceeds $125,000,000, a certificate of a Financial Officer of the Lead Borrower setting forth information as to quantities or production from certifying (and showing the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expensescalculations therefor in reasonable detail) that the Payment Conditions will be satisfied, and (ii) as soon as available the information provided to the board of directors of the Lead Borrower with respect to such other information Permitted Acquisition;
(j) with respect to each Permitted Acquisition, to the extent permitted by Applicable Law, as soon as available, (i) copies of the most recent audited (if available), and if later, unaudited Consolidated financial statements of the Person which is the subject of the Permitted Acquisition, (ii) a description of the proposed Permitted Acquisition in such detail as the Administrative Agent may reasonably request request, including copies of letters of intent and purchase and sale agreements or other acquisition documents executed in connection with respect to the relevant quarterly proposed Permitted Acquisition, (iii) an unaudited pro forma Consolidated balance sheet and income statement of the Loan Parties as of the end of the most recently completed fiscal quarter but prepared as though the Permitted Acquisition had occurred on such date and related pro forma calculations of Excess Availability (as of the last day of each Fiscal Quarter) and the Fixed Charge Coverage Ratio for the subsequent four fiscal quarters period, and (iv) unaudited projections of balance sheets and income statements and related calculations for the following four fiscal quarters, assuming the Permitted Acquisition has closed;
(fk) notice of any intended (i) sale or other disposition of assets of any Loan Party permitted under Section 6.5(c), (d) and (e) hereof at least three (3) Business Days prior to the date of consummation such sale or disposition or (ii) incurrence of any Indebtedness permitted hereunder promptly following the incurrence of such Indebtedness;
(l) within fifteen (15) days after receipt thereof, copies of all final (as soon distinguished from a preliminary or discussion draft) reports submitted to the Lead Borrower or any other Loan Party by independent certified public accountants in connection with each annual, interim or special audit of the books of the Loan Parties made by such accountants, including any management letter commenting on the Borrowers’ internal controls submitted by such accountants to management in connection with their annual audit;
(m) promptly after their preparation, copies of any and all proxy statements, financial statements (other than those described in subsections (a) and (b) hereof), and reports which the Lead Borrower makes available to its shareholders or any holder of any Indebtedness;
(n) if requested by the Administrative Agent, promptly after filing with the IRS or any other applicable Governmental Authority, a copy of each tax return filed by any Loan Party;
(o) within seventeen (17) days (or such longer period as available and the Administrative Agent may agree in its reasonable discretion, but in any event within 60 days after not to exceed twenty-five (25) days) of the end of each Fiscal Year of the Borrowerfiscal month (unless specifically indicated otherwise), a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared or more frequently if requested by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, as of the preceding fiscal month end, in form reasonably satisfactory to the Administrative Agent: (a) a list schedule of all Persons purchasing Hydrocarbons from any each Loan Party’s Accounts created since the last such schedule; (b) an aging of each Loan Party’s Accounts together with a reconciliation to the previous fiscal month end’s accounts receivable balance of such Loan Party’s Accounts and to its general ledger; (c) a summary aging by payee of each Loan Party’s accounts payable; and (d) upon the Agent’s request, a statement of the balance of each of the intercompany accounts of the Loan Parties;
(p) promptly after the filing thereof, a copy of any actuarial valuation prepared by Xxxxx Canada’s actuary with respect to amounts to be funded under any Canadian Defined Benefit Pension Plan that is required to be filed with the Financial Services Commission of Ontario and any Person succeeding to the functions thereof and includes the Superintendent under such statute and any other Governmental Authority empowered or created by the Supplemental Pensions Act (Québec) or the Pension Benefits Act (Ontario) or any Governmental Authority of any other Canadian jurisdiction exercising similar functions in respect of any Canadian Defined Benefit Pension Plan of Xxxxx Canada or any of its Subsidiaries and any Governmental Authority succeeding to the functions thereof; and
(hq) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Lead Borrower or any other Loan Party, or compliance with the terms of its Subsidiaries any Loan Document, as the Administrative Agent Agents or any Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Brown Shoe Co Inc)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each LenderAgent:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like similar qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards; provided, that to the extent that any Special Purpose Subsidiary with assets in excess of $1,000,000 or any Foreclosed Subsidiary, in each case, that is treated as a consolidated entity and reflected on the consolidated balance sheet of the Borrower and its Subsidiaries, concurrently with the delivery of the financial statements referred to in this paragraph (a), the Borrower shall provide to the Administrative Agent a balance sheet for each such Special Purpose Subsidiary or such Foreclosed Subsidiary, as applicable, as of the end of such Fiscal Year and the related statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of such Special Purpose Subsidiary or such Foreclosed Subsidiary, as applicable, for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, unless such requirement is waived by the Administrative Agent;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year, all certified by the chief financial officer or treasurer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes; provided, that to the extent that any Special Purpose Subsidiary with assets in excess of $1,000,000 or any Foreclosed Subsidiary, in each case, that is treated as a consolidated entity and reflected on the consolidated balance sheet of the Borrower and its Subsidiaries, concurrently with the delivery of the financial statements referred to in this paragraph (b), the Borrower shall provide to the Administrative Agent a balance sheet for each such Special Purpose Subsidiary or such Foreclosed Subsidiary, as applicable, as of the end of such Fiscal Quarter and the related statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of such Special Purpose Subsidiary or such Foreclosed Subsidiary, as applicable, for such Fiscal Quarter, setting forth in each case in comparative form the figures for the previous Fiscal Quarter, unless such requirement is waived by the Administrative Agent;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance CertificateBorrower;
(d) concurrently on or before August 15 of each year for the Fiscal Quarter ended June 30 of such year, and on or before February 15 of each year for the Fiscal Quarter ended December 31, beginning with the delivery of Fiscal Quarter ended December 31, 2011, upon the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list valuation report of the Borrower’s and its Subsidiaries’ loan and securities portfolio, conducted by AFEnergy or such other third party appraiser reasonably acceptable to Administrative Agent and the Required Lenders (such consent not to be unreasonably withheld or delayed) and demonstrating compliance with the Asset Coverage Ratio covenant set forth in Section 6.1;
(e) promptly after the same become publicly available, copies of all Persons purchasing Hydrocarbons from periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Loan Party; andGovernmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(hf) promptly following any reasonable request therefor, such other information regarding the results of operations, business affairs affairs, financial condition and financial position loan and securities portfolio of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request; and
(g) a report of a Responsible Officer of the Total Asset Value of assets disposed of by the Borrower or its Subsidiaries (including loans repaid to the Borrower or its Subsidiaries) subsequent to the most recent public disclosures filed with the Securities and Exchange Commission, promptly following such disposition to the extent that the Total Asset Value of such assets (to the extent not previously reported) exceeds $10,000,000.
Appears in 1 contract
Samples: Revolving Credit Agreement (NGP Capital Resources Co)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 120 days (or 150 days with respect to the Fiscal Year ending December 31, 2015) after the end of each Fiscal Year of the BorrowerBorrower (commencing with the Fiscal Year of the Borrower ending December 31, 2015), a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated and unaudited consolidating (in form and detail satisfactory to the Administrative Agent) balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated and unaudited consolidating statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and (in the case of audited financial statements) reported on by BDO USA, LLP Xxxx Xxxxx Xxxxxx & Kasierer or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year and the corresponding figures for the budget for the current Fiscal Year;
(c) [reserved];
(d) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, be and (ivv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrowercalendar year, forecasts and a 12 month pro forma budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow;
(gf) promptly following after the written request of the Administrative Agentsame become publicly available, a list copies of all Persons purchasing Hydrocarbons from periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Loan PartyGovernmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by Holdings or the Borrower to their respective shareholders generally, as the case may be; and
(hg) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of Holdings and/or the Borrower or any of its the Subsidiaries of the Borrower as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards. Delivery by the Borrower to the Administrative Agent and the Lenders of the Borrower’s annual report to the SEC on Form 10-K with respect to any Fiscal Year or of the notice that such report is available on the SEC XXXXX database, within the period specified above shall be deemed to be compliance by the Borrower with this Section 5.1(a);
(b) as soon as available and in any event within 45 days (or, with respect to the Fiscal Quarter ended June 30, 2011, 60 days) after the end of each of the first three Fiscal Quarters of each Fiscal Year fiscal year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year. Delivery by the Borrower to the Administrative Agent and the Lenders of the Borrower’s quarterly report to the SEC on Form 10-Q with respect to any Fiscal Quarter or of the notice that such report is available on the SEC XXXXX database, within the period specified above shall be deemed to be compliance by the Borrower with this Section 5.1(b);
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Amendment Effective Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, or any issuance of Equity Interest by any Subsidiary after the Amendment Effective Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since that affect the date of the mostly recently delivered audited financial statements of the Borrower and its SubsidiariesSubsidiaries or the calculation of the covenants under this Agreement that has occurred since December 31, and2009, and if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements statements, or annual report to the SEC on Form 10-K, referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Default or Event of Default (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 45 days after the end of each Fiscal Year of the Borrowercalendar year, a 12 month pro forma budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow;
(gf) promptly following after the written request of the Administrative Agentsame become publicly available, a list copies of all Persons purchasing Hydrocarbons from periodic and other current reports, proxy statements and registration statements filed with the Securities and Exchange Commission, or any Loan PartyGovernmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be, or notice that such materials have become publicly available; and
(hg) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request; and
(h) promptly after the same has become available to Borrower, (i) audited consolidated balance sheet of WHI and its Subsidiaries as of December 31, 2009 and December 31, 2010 and the related consolidated statements of income, shareholders’ equity and cash flows for the Fiscal Year then ended audited by PricewaterhouseCoopers LLP and (ii) the unaudited consolidated balance sheet of WHI and its Subsidiaries as of March 31, 2011, and the related unaudited consolidated statements of income and cash flows for the Fiscal Quarter and year-to-date period then ending.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Catalyst Health Solutions, Inc.)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, Xxxxx Xxxxxxxx LLP or other independent public accountants of nationally regionally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or and the principal chief financial officer or treasurer of the Borrower Borrower;
(id) certifying as [intentionally omitted];
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to whether there exists and is continuing a Default any or Event all functions of Default on the date of such certificate andsaid Commission, if such a Default or an Event of Default then existswith any national securities exchange, specifying the details thereof and the action which or distributed by the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarterits shareholders generally, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(hf) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request. In the event that any financial statement delivered pursuant to Section 5.1(a) or (b) or any Compliance Certificate is shown to be inaccurate (regardless of whether this Agreement or any Revolving Commitment is in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then (i) the Borrower shall immediately deliver to the Administrative Agent a correct Compliance Certificate for such Applicable Period, (ii) the Applicable Margin shall be determined as if Level I of Schedule I was applicable for such Applicable Period, and (iii) the Borrower shall immediately pay to the Administrative Agent the accrued additional interest owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the Administrative Agent to the Obligations. This Section 5.1 shall not limit the rights of the Administrative Agent or the Lenders with respect to Section 2.11(c) and ARTICLE VIII; provided, however, that the obligations of the Borrower under this paragraph shall cease to be effective after the date that is one year following the termination of this Agreement unless the Administrative Agent notifies the Borrower prior to the end of such one year period that the Borrower is obligated to pay additional amounts under clause (iii) immediately above.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver Deliver to the Administrative Agent Lender, in form and each detail reasonably satisfactory to the Lender:
(a) as soon as available and available, but in any event within 90 120 days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual audited report for such Fiscal Year each Borrower and Parent (except for the Borrower and its Subsidiaries2020 fiscal year, containing which shall be delivered by May 31, 2021), (i) a consolidated balance sheet of the each of such Borrower and its Subsidiaries the Parent as of the end of such Fiscal Year fiscal year, and the related consolidated statements of incomeincome or operations, stockholdersshareholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on prepared in accordance with GAAP, audited and accompanied by BDO USA, LLP or other independent a report and opinion of a certified public accountants accounting firm of nationally recognized standing (without a reasonably acceptable to the Lender, 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, qualification or exception or explanation and without any qualification or exception as to the scope of such audit) audit or with respect to the absence of any material misstatement, to be certified by a Responsible Officer of the Borrowers and Parent, as applicable, to the effect that such financial statements present are fairly stated in all material respects when considered in relation to the financial position and the results of operations statements of the Borrower Borrowers and its Subsidiaries for such Fiscal Year on a consolidated basis Parent; and (ii) provide compliance calculations and supporting documentation showing compliance with financial covenants in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standardsSection 6.18;
(b) as soon as available and available, but in any event within 45 90 days after the end of each of the first three Fiscal Quarters of each Fiscal Year fiscal quarters of the BorrowerBorrowers and Parent, an unaudited a consolidated balance sheet of each of the Borrower Borrowers and its Subsidiaries Parent as of the end of such Fiscal Quarter fiscal quarter, and the related unaudited consolidated statements statement of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andthe fiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and period or periods (or, in the corresponding portion case of the Borrower’s balance sheet, as of the end of) the previous Fiscal Year;fiscal year, all certified by a Responsible Officer of the Borrowers and Parent, as applicable, to the effect that such statements are fairly stated in all material respects when considered in relation to the financial statements of the Borrowers and Parent.
(c) concurrently as soon as available, but in any event within 30 days after the end of each month (commencing with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Sectionmonth ended November 30, 2020), (i) a duly completed Compliance Certificate signed by the principal executive officer or the principal financial officer a Responsible Officer of the Borrower Borrowers, stating: (iA) certifying as to whether there exists and is continuing a Default or any Event of Default on or, to its knowledge any Default, exists; and (B) (I) the date of such certificate and, if such a Default or an Event of Default then exists, specifying calculations for the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries Available Commitment as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may bemonth, and (ivII) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered audited financial statements of the Borrower information and its Subsidiaries, and, if any change has occurred, specifying the effect of documentation supporting such change on the financial statements accompanying such Compliance Certificate;calculations.
(d) concurrently promptly after any reasonable request by the Lender, 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 Loan Party by independent accountants in connection with the delivery accounts or books of the financial statements referred to in subsection (b) any Loan Party or any of this Sectionits Subsidiaries, a certificate signed by the principal executive officer or the principal financial officer any audit of the Borrower setting forth as any of a recent date, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreementthem;
(e) concurrently with promptly, such additional information regarding the delivery business, financial, legal or corporate affairs of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year of the Borrower, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Year;
(g) promptly following the written request of the Administrative Agent, a list of all Persons purchasing Hydrocarbons from any Loan Party; and
(h) promptly following any request therefor, such other information regarding or compliance with the results of operations, business affairs and financial position terms of the Borrower or any of its Subsidiaries Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request.
Appears in 1 contract
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of incomeoperation, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, Deloitte & Touche LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standardsPublic Company Accounting Oversight Board (U.S.) Standards;
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income operations and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of the Borrower’s previous Fiscal Year;
(c) as soon as available (x) and in any event within 45 days after the Fiscal Quarter ending on or immediately prior to the Effective Date, unaudited statement of operations and broadcasting cash flows of the Target as of the end of such Fiscal Quarter, in a form reasonably satisfactory to the Administrative Agent, (y) such financial information as shall be required to support Capital Expenditures included for the Target in accordance with clause (3) set forth in the last sentence of the definition of Consolidated Fixed Charges and (z) in the event the Borrower shall have received an audited balance sheet of the Target and/or the related audited statements of operations and cash flow of the Target for its 2011 fiscal year end, a copy of such audited financial information within ten (10) days after the Borrower’s receipt of such financial information (provided, that, if the Borrower shall have received the financial information required under this clause (z) prior to the Effective Date, the Borrower shall provide such information to the Administrative Agent and the Lenders not later than the Effective Date);
(d) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive chief financial officer or the principal financial officer treasurer of the Borrower Borrower, (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may beFinancial Covenants, and (iviii) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Borrower’s audited financial statements of the Borrower and its Subsidiaries, referred to in Section 4.5 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (b) of this Sectioncertificate; provided, a certificate signed however, that no action shall be required by the principal executive officer Borrower under this clause (iii) to the extent any such change in GAAP or the principal financial officer of application thereof does not affect or apply to the Borrower setting forth as of a recent dateor its Subsidiaries, a true and complete list of all Hedging Transactions of the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts or volumes), presentation by the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreementBorrower of its financial statements;
(e) concurrently with the delivery of the financial statements referred to in subsection clause (ba) above, a list of all sales or other dispositions of assets made pursuant to Section 7.6(c) and Section 7.6(d) (designating in such whether the Borrower is deeming any sale or disposition to be made under clause (c) or (d) of Section 7.6) of this Section, a certificate signed Agreement by the principal executive officer or Borrower and its Subsidiaries during the principal financial officer Fiscal Year most recently ended, including a description of the Borrower setting forth information as to quantities type of replacement assets and amount and type of other proceeds, if any, received from such sales or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly perioddispositions;
(f) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower or any Subsidiary to its shareholders generally, as soon as available and in any event within 60 the case may be;
(g) no later than sixty (60) days after the end of each Fiscal Year of the BorrowerYear, a 12 month an annual budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared approved by the management board of directors of the Borrower including, without limitation, a four-quarter projected income statement, balance sheet and detailing the projected statement of cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Yearon a quarter-by-quarter basis;
(gh) promptly following promptly, but in any event within three (3) Business Days of (i) the written request execution thereof, a copy of any amendment, supplement or other modification to any of the Administrative AgentAcquisition Documents and (ii) receipt or issuance thereof, all material documents transmitted or received pursuant to, or in connection with, any Acquisition Document including, without limitation, any notice given or action taken in respect of a list claimed default or breach of all Persons purchasing Hydrocarbons from an Acquisition Document and any Loan Partyclaim for indemnification or reimbursement made with respect to the Acquisition Documents by any party thereto; and
(hi) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request. In the event that any financial statement delivered pursuant to Section 5.1(a) or (b) or any Compliance Certificate is shown to be inaccurate (regardless of whether this Agreement or any Commitment is in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin or higher fees for any period (an “Applicable Period”) than the Applicable Margin or fees applied for such Applicable Period, then (i) the Borrower shall immediately deliver to the Administrative Agent a corrected Compliance Certificate for such Applicable Period, (ii) the Applicable Margin or fees for such Applicable Period shall be determined in accordance with the corrected Compliance Certificate, and (iii) the Borrower shall immediately pay to the Administrative Agent the accrued additional interest or fee amount owing as a result of such increased Applicable Margin or fees for such Applicable Period, which payment shall be promptly applied by the Administrative Agent to the Obligations in accordance with Section 2.12. This Section 5.1 shall not limit the rights of the Administrative Agent or the Lenders with respect to Section 2.13(c) and Article VIII hereof. Any financial statements delivered pursuant to this Section 5.1 shall include segment reporting in accordance with FASB ASC 280.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Scripps E W Co /De)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards. Delivery by the Borrower to the Administrative Agent and the Lenders of the Borrower’s annual report to the SEC on Form 10-K with respect to any Fiscal Year or of the notice that such report is available on the SEC XXXXX database, within the period specified above shall be deemed to be compliance by the Borrower with this Section 5.1(a);
(b) as soon as available and in any event within 45 days after the end of each of the first three Fiscal Quarters of each Fiscal Year Quarter of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year. Delivery by the Borrower to the Administrative Agent and the Lenders of the Borrower’s quarterly report to the SEC on Form 10-Q with respect to any Fiscal Quarter or of the notice that such report is available on the SEC XXXXX database, within the period specified above shall be deemed to be compliance by the Borrower with this Section 5.1(b);
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, or any issuance of Equity Interest by any Subsidiary after the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since that affect the date of the mostly recently delivered audited financial statements of the Borrower and its SubsidiariesSubsidiaries or the calculation of the covenants under this Agreement that has occurred since December 31, and2009, and if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements statements, or annual report to the SEC on Form 10-K, referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Default or Event of Default (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 45 days after the end of each Fiscal Year of the Borrowercalendar year, a 12 month pro forma budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current succeeding Fiscal Year, containing an income statement, balance sheet and statement of cash flow;
(gf) promptly following after the written request of the Administrative Agentsame become publicly available, a list copies of all Persons purchasing Hydrocarbons from periodic and other current reports, proxy statements and registration statements filed with the Securities and Exchange Commission, or any Loan PartyGovernmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be, or notice that such materials have become publicly available; and
(hg) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Catalyst Health Solutions, Inc.)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and (who will deliver to each Lender:):
(a) as soon as available and in any event within 90 days after the end of each Fiscal Year of the Borrower, a copy of the annual audited report for such Fiscal Year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year and the related consolidated statements of income, stockholders’ equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all in reasonable detail and reported on by BDO USA, LLP or other independent public accountants of nationally recognized standing (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to the scope of such auditaudit (except any such qualification arising as a result of the impending Maturity Date (as a result of clause (i) of such definition), Revolving Commitment Termination Date (as a result of clause (i) of such definition) or “Revolving Commitment Termination Date” (as defined in the Priming Credit Agreement) (as a result of clause (i) of such definition)) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year on a consolidated basis in accordance with GAAP (as in effect at the time such financial statements were prepared and subject to Section 1.3) consistently applied (except as expressly noted therein) and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after the end of each Fiscal Quarter of the first three Borrower (other than the last Fiscal Quarters of Quarter in each Fiscal Year of the BorrowerYear), an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter and the then elapsed portion of such Fiscal Year andYear, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter and the corresponding portion of the Borrower’s previous Fiscal Year and the corresponding figures for the Profit Plan for the current Fiscal Year;
(c) concurrently with the delivery of the financial statements referred to in subsections (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section), a Compliance Certificate signed by the principal executive officer or the principal financial officer an appropriate Responsible Officer of the Borrower (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate and, if such a Default or an Event of Default then exists, specifying the details thereof and the action action, if any, which the Borrower has taken or proposes to take with respect thereto, (ii) if applicable, setting forth in reasonable detail calculations demonstrating compliance with the financial covenants covenant set forth in Article VI, (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly most recently delivered audited financial statements of the Borrower and its Subsidiaries, and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificate;
(d) concurrently with the delivery of the financial statements referred to in subsection (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as of a recent dateaccounting firm that reported on such financial statements (which may be included in the opinion or other reports delivered by such accounting firm pursuant to subsection (a)) stating that, a true and complete list of all Hedging Transactions in making the examination necessary to prepare such financial statements, no knowledge was actually obtained of the Loan Partiesoccurrence and continuance of any Default or Event of Default, except as specified in such certificate (it being understood that no special or separate inquiry or review will have been made or shall be required to be made with respect to the material terms thereof (including existence of any Default or Event of Default and that such certificate shall be limited to the type, term, effective date, termination date items that independent certified public accountants are permitted to cover in such certificates pursuant to their professional standards and notional amounts or volumescustoms of the profession), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) concurrently with the delivery of the financial statements referred to in subsection (b) of this Section, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 90 days after the end commencement of each any Fiscal Year of the BorrowerYear, a 12 month budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries Profit Plan for such current Fiscal Year;
(gf) promptly following after the written request of the Administrative Agentsame become publicly available, a list copies of all Persons purchasing Hydrocarbons from periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Loan Party; andGovernmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(hg) promptly following any request therefor, such other reports or information regarding including with respect to the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably request;
(h) deliver to the Administrative Agent (who will deliver to each private-side Lender) as soon as available and in any event within 30 days after the end of each fiscal month of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal month and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such fiscal month and the then elapsed portion of such Fiscal Year, setting forth in each case in comparative form the corresponding figures for the Profit Plan for the current Fiscal Year; provided the Administrative Agent and the Lenders acknowledge and agree that (x) the financial statements described in this clause (h) are confidential and constitute material non-public information of the Borrower and (y) neither the Administrative Agent nor any other Lender (including any private-side Lender) shall distribute or furnish a copy of all or any portion of the financial statements described in this clause (h) to any Lender that is not a private-side Lender other as expressly permitted under Section 10.11(iv); and
(i) deliver to the Administrative Agent (for distribution to the Revolving Credit Lenders) 13-week cash flow statements within five (5) Business Days of the last day of each calendar week. So long as the Borrower is required to file periodic reports under Section 13(a) or Section 15(d) of the Exchange Act, the Borrower may satisfy its obligation to deliver the financial statements referred to in clauses (a) and (b) above by delivering the Borrower’s Form 10-K or 10-Q filed with the Securities and Exchange Commission within the applicable time periods set forth in clauses (a) and (b), as applicable.
Appears in 1 contract
Samples: Credit Agreement (BioScrip, Inc.)
Financial Statements and Other Information. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 ninety (90) days after the end of each Fiscal Year fiscal year of the Borrower, a copy of the annual audited report for such Fiscal Year fiscal year for the Borrower and its Subsidiaries, containing a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Year fiscal year and the related consolidated statements of income, stockholders’ ' equity and cash flows (together with all footnotes thereto) of the Borrower and its Subsidiaries for such Fiscal Yearfiscal year, setting forth in each case in comparative form the figures for the previous Fiscal Yearfiscal year, all in reasonable detail and reported on by BDO USA, Deloitte & Touche LLP or other independent public accountants of nationally recognized standing (without a “"going concern” " or like qualification, exception or explanation and without any qualification or exception as to the scope of such audit) to the effect that such financial statements present fairly in all material respects the financial position condition and the results of operations of the Borrower and its Subsidiaries for such Fiscal Year fiscal year on a consolidated basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated financial statements has been made in accordance with generally accepted auditing standards;
(b) as soon as available and in any event within 45 forty-five (45) days after the end of each of the first three Fiscal Quarters fiscal quarters of each Fiscal Year fiscal year of the Borrower, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such Fiscal Quarter fiscal quarter and the related unaudited consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such Fiscal Quarter fiscal quarter and the then elapsed portion of such Fiscal Year andfiscal year, commencing on December 31, 2017, together with setting forth in each case in comparative form the figures for the corresponding Fiscal Quarter quarter and the corresponding portion of Borrower's previous fiscal year, all certified by a Responsible Officer as presenting fairly in all material respects the Borrower’s previous Fiscal Yearfinancial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with the delivery of the financial statements referred to in subsections clauses (a) and (b) of this Section (other than the financial statements for the fourth Fiscal Quarter of each Fiscal Year delivered pursuant to subsection (b) of this Section)above, a Compliance Certificate signed by the principal executive officer or the principal financial officer certificate of the Borrower a Responsible Officer, (i) certifying as to whether there exists and is continuing a Default or Event of Default on the date of such certificate andcertificate, and if such a Default or an Event of Default then exists, specifying the details thereof and the action which the Borrower has taken or proposes to take with respect thereto, (ii) setting forth in reasonable detail calculations demonstrating compliance with the financial covenants set forth in Article VI, and (iii) specifying any change in the identity of the Subsidiaries as of the end of such Fiscal Year or Fiscal Quarter from the Subsidiaries identified to the Administrative Agent and the Lenders on the Closing Date or as of the most recent Fiscal Year or Fiscal Quarter, as the case may be, and (iv) stating whether any change in GAAP or the application thereof has occurred since the date of the mostly recently delivered Borrower's audited financial statements of the Borrower and its Subsidiaries, referred to in Section 4.4 and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such Compliance Certificatecertificate;
(d) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth as accounting firm that reported on such financial statements stating whether they obtained any knowledge during the course of a recent date, a true and complete list their examination of all Hedging Transactions such financial statements of any Default or Event of Default (which certificate may be limited to the Loan Parties, the material terms thereof (including the type, term, effective date, termination date and notional amounts extent required by accounting rules or volumesguidelines), the net xxxx-to-market value therefor, any new credit support agreements relating thereto not listed on Schedule 4.24, any margin required or supplied under any credit support document, and the counterparty to each such agreement;
(e) promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be;
(f) concurrently with the delivery of the financial statements referred to in subsection clause (ba) of this Sectionabove, a certificate signed by the principal executive officer or the principal financial officer of the Borrower setting forth information as to quantities or production from the Loan Parties’ proved Oil and Gas Properties, volumes of production sold, pricing, purchasers of production, gross revenues, lease operating expenses, and such other information as the Administrative Agent may reasonably request with respect to the relevant quarterly period;
(f) as soon as available and in any event within 60 days after the end of each Fiscal Year copy of the Borrower, a 12 month 's proposed annual budget for the Borrower and its Subsidiaries for the current Fiscal Year prepared by the management of the Borrower and detailing the projected cash flows and capital expenditures of the Borrower and its Subsidiaries for such current Fiscal Yearfinancial projections;
(g) promptly following concurrently with a request for a Borrowing or a request for the written request issuance of a Letter of Credit and on the fifteenth (15th) day of each March, June, September, and December, the Borrower shall deliver to the Administrative Agent a Borrowing Base Certificate;
(h) on the fifteenth (15th) day of each March, June, September, and December, the Borrower shall deliver to the Administrative Agent, in a form reasonably acceptable to the Administrative Agent, a list listing and aging of all Persons purchasing Hydrocarbons from any Loan PartyBorrower's accounts receivable; and
(hi) promptly following any request therefor, such other information regarding the results of operations, business affairs and financial position condition of the Borrower or any of its Subsidiaries Subsidiary as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (American Healthways Inc)
