Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent and each Lender: (a) within ninety (90) days after the end of each fiscal year of the Company, the Specified Audited Annual Financial Statements; (b) within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Company, the Specified Quarterly Financial Statements; (c) during any Increased Reporting Period, within thirty (30) days after the end of each fiscal month of the Company (beginning with the first fiscal month ending after such Increased Reporting Period commences), the Specified Monthly Financial Statements; (d) concurrently with any delivery of financial statements under clause (a), (b) or (c) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit C (i) certifying, in the case of the financial statements delivered under clause (b) or (c), NAI-1500544456v14 78 as to the matters described in the definitions of Specified Quarterly Financial Statements or Specified Monthly Financial Statements, as applicable, (ii) certifying as to whether a Default has occurred and is continuing and, if a Default has occurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iii) setting forth reasonably detailed calculations of the Fixed Charge Coverage Ratio (whether or not required to be tested pursuant to Section 6.12) and, if applicable, demonstrating compliance with Section 6.12, and (iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate; (e) as soon as available but in any event no later than the end of, and no earlier than 30 days prior to the end of, each fiscal year of the Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Company and its Subsidiaries for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to the Administrative Agent; (f) on or before each Borrowing Base Reporting Date, as of the period then ended, a Borrowing Base Certificate and supporting information in connection therewith, together with any additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request; (g) on or before each Borrowing Base Reporting Date, as of the period then ended, all delivered electronically in a text formatted file acceptable to the Administrative Agent: (i) a detailed aging of the Borrowers’ Accounts, including all invoices aged by invoice date and due date (with an explanation of the terms offered), prepared in a manner reasonably acceptable to the Administrative Agent, together with a summary specifying the name, address, and balance due for each Account Debtor; (ii) a worksheet of calculations prepared by the Borrowers to determine Eligible Accounts, such worksheets detailing the Accounts excluded from Eligible Accounts and the reason for such exclusion; provided, that during any Increased Reporting Period, the Borrower shall only be required to provide the information in this clause (ii) on a monthly basis; (iii) a reconciliation of the Borrowers’ Accounts between (A) the amounts shown in the Borrowers’ general ledger and financial statements and the reports delivered pursuant to clause (i) above and (B) the amounts and dates shown in the reports delivered pursuant to clause (i) above and the Borrowing Base Certificate delivered pursuant to clause (g) above as of such date; (iv) a reconciliation of the loan balance per the Borrowers’ general ledger to the loan balance under this Agreement; and (v) a daily schedule of cash receipts from Eligible Accounts. NAI-1500544456v14 79 (h) on or before each Borrowing Base Reporting Date, as of the month most recently ended, a schedule and aging of the Borrowers’ accounts payable, delivered electronically in a text formatted file reasonably acceptable to the Administrative Agent; (i) within 45 days after the end of each fiscal year and at such other times as the Administrative Agent may reasonably request, an updated customer list for each Borrower and its Subsidiaries, which list shall state the customer’s name, mailing address and phone number, delivered electronically in a text formatted file acceptable to the Administrative Agent and certified as true and correct by a Financial Officer of the Borrower Representative; (j) promptly upon the Administrative Agent’s request: (i) copies of invoices issued by the Borrowers in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto; and (ii) a schedule detailing the balance of all intercompany accounts of the Loan Parties; (k) at such other times as may be reasonably requested by the Administrative Agent, as of the period then ended, the Borrowers’ sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journal; (l) within five days after the first Business Day of each March, a certificate of good standing or the substantive equivalent available in the jurisdiction of incorporation, formation or organization for each Loan Party from the appropriate governmental officer in such jurisdiction; (m) promptly after any request therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that any Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that any Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if a Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the applicable Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and (n) promptly following any request therefor, such other information regarding the operations, changes in ownership of Equity Interests, business affairs and financial condition of Parent (to the extent not readily available on the website of the SEC at xxxx://xxx.xxx.xxx), Intermediate Holdco, any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request. The Company represents and warrants that it, its controlling Person and any Subsidiary, in each case, if any, either (i) has no registered or publicly traded securities outstanding, or (ii) files its financial statements with the SEC and/or makes its financial statements available to potential holders of its 144A securities, and, accordingly, the Company hereby (i) authorizes the NAI-1500544456v14 80 Administrative Agent to make the financial statements to be provided under Section 5.01(a) and (b) above (collectively or individually, as the context requires, the “Financial Statements”), along with the Loan Documents, available to Public-Xxxxxx and (ii) agree that at the time such Financial Statements are provided hereunder, they shall already have been made available to holders of its securities. The Company will not request that any other material be posted to Public-Xxxxxx without expressly representing and warranting to the Administrative Agent in writing that such materials do not constitute material non-public information within the meaning of the federal securities laws or that the Company has no outstanding publicly traded securities, including 144A securities.
Appears in 1 contract
Samples: Credit Agreement (Opko Health, Inc.)
Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent and each Lender:
(a) as soon as available, but in any event within ninety (90) days after the end of each fiscal year of the Company, (i) its audited consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the Specified Audited Annual end of and for such year and (ii) the consolidated balance sheet and related statements of operations, stockholders' equity and cash flows of each of (x) the Loan Parties (excluding Subsidiaries that are not Loan Parties) and (y) the Subsidiaries (excluding Subsidiaries that are Loan Parties), in each case, as of the end of and for such year, in the case of clause (i) and (ii) setting forth in each case in comparative form the figures for the previous fiscal year, (A) in the case of clause (i), all reported on by independent public accountants of recognized national standing (without a "going concern" or like qualification, commentary or exception (other than a "going concern" or like qualification, commentary or exception due solely to the fact that the Maturity Date is then scheduled to occur in less than twelve months) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied and (B) in the case of clause (ii), all certified by a Financial StatementsOfficer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of the Loan Parties (excluding Subsidiaries that are not Loan Parties) and the Subsidiaries (excluding Subsidiaries that are Loan Parties), in each case, in accordance with GAAP consistently applied (subject to the absence of footnotes), accompanied by, if available, any management letter prepared by said accountants;
(b) as soon as available, but in any event within forty-five sixty (4560) days after the end of each of the first three fiscal quarters of each fiscal year of the Company, (i) its consolidated balance sheet and related statements of operations, and cash flows as of the Specified Quarterly end of and for such fiscal quarter and the then elapsed portion of such fiscal year and (ii) the consolidated balance sheet and related statements of operations, and cash flows of each of (x) the Loan Parties (excluding Subsidiaries that are not Loan Parties) and (y) the Subsidiaries (excluding Subsidiaries that are Loan Parties), in each case, as of the end of and for such fiscal quarter and the then elapsed portion of such fiscal year, in the case of clause (i) and (ii), 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 StatementsOfficer of the Borrower Representative as presenting fairly in all material respects the financial condition and results of operations of (x) the Company and its consolidated Subsidiaries on a consolidated basis (in the case of clause (i)) and (y) the Loan Parties (excluding Subsidiaries that are not Loan Parties) and the Subsidiaries (excluding Subsidiaries that are Loan Parties) (in the case of clause (ii)), in each case, in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;
(c) during any Increased a Reporting Trigger Period, within thirty twenty (3020) days after the end of each fiscal month of the Company (beginning with Company, its management-prepared, consolidated balance sheet and related statements of operations, and cash flows as of the first end of and for such fiscal month ending after such Increased Reporting Period commences)and the then elapsed portion of the fiscal year setting forth in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial Officer of the Borrower Representative (to the best of its knowledge) as being prepared based on, and in a manner consistent with, the Specified Monthly Financial Statementsbooks and records of the Company;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (c) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit C D (i) certifyingmaking the certifications described in clauses (a), in the case of the financial statements delivered under clause (b) or and (c), NAI-1500544456v14 78 as to the matters described in the definitions of Specified Quarterly Financial Statements or Specified Monthly Financial Statements) above, as applicable, (ii) certifying as to whether a Default has occurred and is continuing and, if a Default has occurred and is continuingoccurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iii) setting forth reasonably detailed calculations of the Fixed Charge Coverage Ratio (whether or not required to be tested pursuant to Section 6.12) and, if applicable, demonstrating compliance with Section 6.12, (iv) setting forth reasonably detailed calculation of Qualified Cash as of the last day of the applicable period (together with supporting information relating thereto), (v) setting forth the type of and aggregate outstanding amount of any investments in the Equity Interests of, loans or advances to, guaranties of any obligations of or other investments or interests in, any Subsidiary of the Company that is not a Loan Party as of the date of delivery of the Compliance Certificate (including a comparison of such amounts to the amounts from the prior period) and in a form reasonably acceptable to the Administrative Agent and (ivvi) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) [reserved];
(f) as soon as available but in any event no later than within thirty (30) days of the end of, and no earlier than 30 days prior to the end of, of each fiscal year of the Company, a copy of the plan and forecast (including a projected consolidated for each of (i) the Company and consolidating its Subsidiaries, taken as a whole, (ii) the Loan Parties (excluding Subsidiaries that are not Loan Parties), taken as a whole, and (ii) the Subsidiaries (excluding Subsidiaries that are Loan Parties), taken as a whole, balance sheetsheets, income statement and funds cash flow statement) of the Company Company, the Loan Parties (excluding Subsidiaries that are not Loan Parties) and its the Subsidiaries (excluding Subsidiaries that are Loan Parties) for each month quarter of the upcoming fiscal year (the “"Projections”") in form reasonably satisfactory to the Administrative Agent;
(fg) on or before as soon as available but in any event within twenty-five (25) days of the end of each Borrowing Base calendar month (and within 4 Business Days of the end of each calendar week which ends during a Reporting DateTrigger Period), and at such other times as may be requested by the Administrative Agent in its Permitted Discretion, as of the period then ended, a Borrowing Base Certificate and supporting information in connection therewith, together with any additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request; and the M&E Component of the Borrowing Base shall be updated (i) from time to time upon receipt of periodic valuation updates received from the Administrative Agent's asset valuation experts, (ii) concurrently with the sale or commitment to sell any assets constituting part of the M&E Component, (iii) in the event such assets are idled for any reason other than routine maintenance or repairs for a period in excess of thirty (30) consecutive days, and (iv) in the event that the value of such assets is otherwise impaired in any material respect, as determined by the Administrative Agent in its Permitted Discretion;
(gh) on or before as soon as available but in any event within twenty-five (25) days of the end of each Borrowing Base calendar month (and within 4 Business Days of the end of each calendar week which ends during a Reporting DateTrigger Period) and at such other times as may be requested by the Administrative Agent, as of the period then ended, all delivered electronically in a text formatted file acceptable to the Administrative Agent:;
(i) a detailed aging of the Borrowers’ ' Accounts, including all invoices aged by invoice date and due date (with an explanation of the terms offered), prepared in a manner reasonably acceptable to the Administrative Agent, together with a summary specifying the name, address, and balance due for each Account Debtor;
(ii) a schedule detailing the Borrowers' Inventory, in form satisfactory to the Administrative Agent, (1) by location (showing Inventory in transit, any Inventory located with a third party under any consignment, bailee arrangement, or warehouse agreement), by class (raw material, work-in-process and finished goods), by product type, by volume on hand, by aged inventory and by inventory expiry date (including inventory dating summaries), which Inventory shall be valued at the lower of cost (determined on a first-in, first-out basis) or market and adjusted for Reserves as the Administrative Agent has previously indicated to the Borrower Representative are deemed by the Administrative Agent to be appropriate, and (2) if so requested by the Administrative Agent, including a report of any variances or other results of Inventory counts performed by the Borrowers since the last Inventory schedule (including information regarding sales or other reductions, additions, returns, credits issued by Borrowers and complaints and claims made against the Borrowers);
(iii) a worksheet of calculations prepared by the Borrowers to determine Eligible AccountsAccounts and Eligible Inventory, such worksheets detailing the Accounts and Inventory excluded from Eligible Accounts and Eligible Inventory and the reason for such exclusion; provided, that during any Increased Reporting Period, the Borrower shall only be required to provide the information in this clause (ii) on a monthly basis;
(iiiiv) a reconciliation of the Borrowers’ ' Accounts and Inventory between (A) the amounts shown in the Borrowers’ ' general ledger and financial statements and the reports delivered pursuant to clause clauses (i) and (ii) above and (B) the amounts and dates shown in the reports delivered pursuant to clause clauses (i) and (ii) above and the Borrowing Base Certificate delivered pursuant to clause (g) above as of such date;; and
(ivv) a reconciliation of the loan balance per the Borrowers’ ' general ledger to the loan balance under this Agreement; and;
(vi) a daily schedule as soon as available but in any event within twenty-five (25) days of cash receipts from Eligible Accounts. NAI-1500544456v14 79 (h) on or before the end of each Borrowing Base Reporting Datecalendar month and at such other times as may be requested by the Administrative Agent, as of the month most recently then ended, a schedule and aging of the Borrowers’ ' accounts payable, delivered electronically in a text formatted file reasonably acceptable to the Administrative Agent;
(ij) as soon as available but in any event within 45 twenty (20) days after the end of each fiscal year of March 31 and September 30, and at such other times as may be reasonably requested by the Administrative Agent may reasonably requestAgent, an updated customer list for each Borrower and its Subsidiaries, which list shall state the customer’s 's name, mailing address and phone number, delivered electronically in a text formatted file reasonably acceptable to the Administrative Agent and certified as true and correct in all material respects by a Financial Officer of the Borrower Representative;
(jk) promptly upon the Administrative Agent’s 's reasonable request:
(i) copies of invoices issued by the Borrowers in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto;
(ii) copies of purchase orders, invoices, and shipping and delivery documents in connection with any Inventory or Equipment purchased by any Loan Party; and
(iiiii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(k) at such other times as may be reasonably requested by the Administrative Agent, as of the period then ended, the Borrowers’ sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journal;
(l) within five twenty (20) days after the first Business Day delivery of each Marchthe financial statements required under Section 5.01(a), a certificate of good standing or the substantive equivalent available in the jurisdiction of incorporation, formation or organization for each Loan Party from the appropriate governmental officer in such jurisdiction;
(m) promptly after any request therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that any Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that any Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if a Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the applicable Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and[reserved];
(n) promptly following any request therefor, such other information regarding the operations, material changes in ownership of Equity Interests, business affairs and financial condition of Parent (to the extent not readily available on the website of the SEC at xxxx://xxx.xxx.xxx), Intermediate Holdco, any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request. The Company represents and warrants ; provided, that itnotwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, its controlling Person and no Loan Party or any SubsidiarySubsidiary shall be required to deliver any information to the extent it (i) is subject to third party confidentiality agreements with Persons that are not Affiliates of the Loan Party or Subsidiary or attorney/client privilege, (ii) constitutes non-financial trade secrets or non-financial proprietary information or (iii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by applicable law); and
(o) Financial information required to be delivered pursuant to Sections 5.01(a) or (b) (in each case, if anysolely to the extent such financial information is included in materials filed with the SEC or posted on the relevant website, either as the case may be) shall be deemed to have been delivered to the Administrative Agent on the date on which such information has been posted on such Loan Party or Subsidiary's behalf on an Agency Site (or another relevant website identified by the Borrower to the Administrative Agent and reasonably acceptable to the Administrative Agent) or is available via the XXXXX system of the SEC; provided that in each case the Loan Party shall (i) has no registered or publicly traded securities outstanding, or (ii) files its financial statements with notify the SEC and/or makes its financial statements available to potential holders of its 144A securities, and, accordingly, the Company hereby (i) authorizes the NAI-1500544456v14 80 Administrative Agent to make of the financial statements to be provided under Section 5.01(a) and (b) above (collectively or individually, as the context requires, the “Financial Statements”), along with the Loan Documents, available to Public-Xxxxxx posting of any such information and (ii) agree that at the time promptly deliver paper copies of any such Financial Statements are provided hereunder, they shall already have been made available to holders of its securities. The Company will not request that any other material be posted to Public-Xxxxxx without expressly representing and warranting documents to the Administrative Agent in writing that such materials do not constitute material non-public information within if the meaning of the federal securities laws or that the Company has no outstanding publicly traded securities, including 144A securitiesAdministrative Agent so requests.
Appears in 1 contract
Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent and each Lender:
(a) within ninety (90) days after the end of each fiscal year of the Company, the Specified Audited Annual Financial Statements;
(b) within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Company, the Specified Quarterly Financial Statements;
(c) during any Increased Reporting Period, within thirty (30) days after the end of each fiscal month of the Company (beginning with the first fiscal month ending after such Increased Reporting Period commences), the Specified Monthly Financial Statements;; NAI-1514693629v12 95
(d) concurrently with any delivery of financial statements under clause (a), (b) or (c) above, a certificate of a Financial Officer of the Borrower Representative in substantially the form of Exhibit C (i) certifying, in the case of the financial statements delivered under clause (b) or (c), NAI-1500544456v14 78 as to the matters described in the definitions of Specified Quarterly Financial Statements or Specified Monthly Financial Statements, as applicable, (ii) certifying as to whether a Default has occurred and is continuing and, if a Default has occurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iii) setting forth reasonably detailed calculations of the Fixed Charge Coverage Ratio (whether or not required to be tested pursuant to Section 6.12) and, if applicable, demonstrating compliance with Section 6.12, and (iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) as soon as available but in any event no later than the end of, and no earlier than 30 days prior to the end of, each fiscal year of the Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds cash flow statement) of the Company and its Subsidiaries for each month quarter of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to the Administrative Agent;
(f) on or before each Borrowing Base Reporting Date, as of the period then ended, a Borrowing Base Certificate and supporting information in connection therewiththerewith (including, in respect of any Borrowing Base Certificate delivered for a month or week which is also the end of any fiscal quarter of the Company, a calculation of Average Quarterly Availability for such quarter then ended and an indication of what the Applicable Commitment Fee Rate is as a result of such Average Quarterly Availability) together with any additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request; provided, however, that during any Increased Reporting Period (i) if the Borrower does not have the information to calculate the actual amount of Additions, Deductions and Collateral Ineligibles (as such terms are used in the Borrowing Base Certificate) with respect to the gross Accounts set forth in a weekly Borrowing Base, the Borrower may submit a Borrowing Base Certificate utilizing amounts for such items which shall be based upon percentages of Additions, Deductions and Collateral Ineligibles (determined in relation to the gross Accounts) in each case reflected on the most recently delivered monthly Borrowing Base Certificate (whether delivered with respect to a period prior to such Increased Reporting Period or pursuant to clause (ii) below); provided further, that once the Borrower has determined the actual amounts of Additions, Deductions and Collateral Ineligibles (as such terms are used in the Borrowing Base Certificate) with respect to the gross Accounts, it shall update the most recently delivered Borrowing Base Certificate within five (5) Business Days thereof and (ii) for each fiscal month, the Borrower shall also be required to deliver a Borrowing Base Certificate within twenty (20) Business Days after the end of such fiscal month, which Borrowing Base Certificate shall use actual amounts of Additions, Deductions and Collateral Ineligibles;
(g) on or before each Borrowing Base Reporting Date, as of the period then ended, all delivered electronically in a text formatted file acceptable to the Administrative Agent:: NAI-1514693629v12 96
(i) a detailed aging of the Borrowers’ Accounts, including all invoices aged by invoice date and due date (with an explanation of the terms offered), prepared in a manner reasonably acceptable to the Administrative Agent, together with a summary specifying the name, address, and balance due for each Account Debtor;
(ii) a worksheet of calculations prepared by the Borrowers to determine Eligible Accounts, such worksheets detailing the Accounts excluded from Eligible Accounts and the reason for such exclusion; provided, that during any Increased Reporting Period, the Borrower shall only be required to provide the information in this clause (ii) on a monthly basis;
(iii) a reconciliation of the Borrowers’ Accounts between (A) the amounts shown in the Borrowers’ general ledger and financial statements and the reports delivered pursuant to clause (i) above and (B) the amounts and dates shown in the reports delivered pursuant to clause (i) above and the Borrowing Base Certificate delivered pursuant to clause (g) above as of such date;
(iv) a reconciliation of the loan balance per the Borrowers’ general ledger to the loan balance under this Agreement; and
(v) a daily schedule of cash receipts from Eligible Accounts. NAI-1500544456v14 79 .
(h) on or before each Borrowing Base Reporting Date, as of the month most recently ended, a schedule and aging of the Borrowers’ accounts payable, delivered electronically in a text formatted file reasonably acceptable to the Administrative Agent;
(i) within 45 days after the end of each fiscal year and at such other times as the Administrative Agent may reasonably request, an updated customer list for each Borrower and its Subsidiaries, which list shall state the customer’s name, mailing address and phone number, delivered electronically in a text formatted file acceptable to the Administrative Agent and certified as true and correct by a Financial Officer of the Borrower Representative;
(j) promptly upon the Administrative Agent’s request:
(i) copies of invoices issued by the Borrowers in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto; and
(ii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(k) at such other times as may be reasonably requested by the Administrative Agent, as of the period then ended, the Borrowers’ sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journal;; NAI-1514693629v12 97
(l) within five days after the first Business Day of each March, a certificate of good standing or the substantive equivalent available in the jurisdiction of incorporation, formation or organization for each Loan Party from the appropriate governmental officer in such jurisdiction;
(m) promptly after any request therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that any Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that any Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if a Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the applicable Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and
(n) promptly following any request therefor, (i) such other information regarding the operations, changes in ownership of Equity Interests, business affairs and financial condition of Parent (to the extent not readily available on the website of the SEC at xxxx://xxx.xxx.xxx), Intermediate Holdco, any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request, and (ii) information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation. The Company represents and warrants that it, its controlling Person and any Subsidiary, in each case, if any, either (i) has no registered or publicly traded securities outstanding, or (ii) files its financial statements with the SEC and/or makes its financial statements available to potential holders of its 144A securities, and, accordingly, the Company hereby (i) authorizes the NAI-1500544456v14 80 Administrative Agent to make the financial statements to be provided under Section 5.01(a) and (b) above (collectively or individually, as the context requires, the “Financial Statements”), along with the Loan Documents, available to Public-Xxxxxx and (ii) agree that at the time such Financial Statements are provided hereunder, they shall already have been made available to holders of its securities. The Company will not request that any other material be posted to Public-Xxxxxx without expressly representing and warranting to the Administrative Agent in writing that such materials do not constitute material non-public information within the meaning of the federal securities laws or that the Company has no outstanding publicly traded securities, including 144A securities.
Appears in 1 contract
Samples: Credit Agreement (Opko Health, Inc.)
Financial Statements; Borrowing Base and Other Information. The Borrowers will furnish to the Administrative Agent and each Lender:
(a) within in accordance with then applicable law and not later than ninety (90) days after the end of each fiscal year of the Company, the Specified Audited Annual Financial StatementsCompany’s audited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by Xxxxx & Young LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; provided that the Borrowers shall be deemed to have furnished said annual audited financial statements for purposes of this Section 5.01(a) if the same shall have timely been made available on “XXXXX” and the Borrowers shall have complied with Section 5.01(l) in respect thereof;
(b) within in accordance with then applicable law and not later than forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year quarter of the Company, its consolidated balance sheet and related statements of operations, stockholders' equity and cash flows as of the Specified Quarterly end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by a Financial StatementsOfficer of the Company as presenting fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; provided that the Borrowers shall be deemed to have furnished said quarterly financial statements for purposes of this Section 5.01(b) if the same shall have timely been made available on “XXXXX” and the Borrowers shall have complied with Section 5.01(l) in respect thereof;
(c) during any Increased Reporting Period, within thirty (30) days after the end of each fiscal month of the Company (beginning with the first fiscal month ending after such Increased Reporting Period commences), the Specified Monthly Financial Statements;
(d) concurrently with any delivery of financial statements under clause (a), ) or (b) or (c) above, (i) a schedule or report, in form and substance reasonably satisfactory to the Administrative Agent, detailing the financial condition and results of operations of the Company and its Restricted Subsidiaries after eliminating the assets, liabilities and results of operations of Compressco and (ii) a compliance certificate of a Financial Officer of the Borrower Representative Company in substantially the form of Exhibit C (iA) certifying, in the case of the financial statements delivered under clause (b) or (c), NAI-1500544456v14 78 as that such statements present fairly in all material respects the financial condition and results of operations of the Company and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the matters described in the definitions absence of Specified Quarterly Financial Statements or Specified Monthly Financial Statements, as applicablefootnotes, (iiB) certifying as to whether a Default has occurred and is continuing and, if a Default has occurred and is continuingoccurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iiiC) setting forth reasonably detailed calculations of the Fixed Charge Coverage Ratio for the fiscal quarter most recently ended and an indication of the Applicable Rate as a result of such calculation, (whether or not required to be tested pursuant to Section 6.12) and, if applicable, demonstrating compliance with Section 6.12, and (ivD) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred most recently delivered pursuant to in Section 3.04 clause (a) above and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
, (eE) as soon as available but in any event no later than the end of, and no earlier than 30 days prior to the end of, each fiscal year of the Company, setting forth a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Company and its Subsidiaries for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to the Administrative Agent;
(f) on or before each Borrowing Base Reporting Date, as of the period then ended, a Borrowing Base Certificate and supporting information in connection therewith, together detailed calculation showing compliance with any additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request;
(g) on or before each Borrowing Base Reporting Date, as of the period then ended, all delivered electronically in a text formatted file acceptable to the Administrative Agent:
(i) a detailed aging of the Borrowers’ Accounts, including all invoices aged by invoice date and due date (with an explanation of the terms offered), prepared in a manner reasonably acceptable to the Administrative Agent, together with a summary specifying the name, address, and balance due for each Account Debtor;
(ii) a worksheet of calculations prepared by the Borrowers to determine Eligible Accounts, such worksheets detailing the Accounts excluded from Eligible Accounts and the reason for such exclusion; provided, that during any Increased Reporting Period, the Borrower shall only be required to provide the information in this clause (ii) on a monthly basis;
(iii) a reconciliation of to the Borrowers’ Accounts between proviso to Section 6.04(c), and (AEF) certifying that the amounts shown in the Borrowers’ general ledger and financial statements and the reports schedule or report delivered pursuant to clause (i) above is true and (B) the amounts and dates shown correct in the reports delivered pursuant to clause (i) above and the Borrowing Base Certificate delivered pursuant to clause (g) above as of such dateall material respects;
(iv) a reconciliation of the loan balance per the Borrowers’ general ledger to the loan balance under this Agreement; and
(v) a daily schedule of cash receipts from Eligible Accounts. NAI-1500544456v14 79 (h) on or before each Borrowing Base Reporting Date, as of the month most recently ended, a schedule and aging of the Borrowers’ accounts payable, delivered electronically in a text formatted file reasonably acceptable to the Administrative Agent;
(id) within 45 ninety (90) days after the end of each fiscal year of the Company, (commencing with the fiscal year ending December 31, 2018), its internally-prepared consolidating financial statements reconciling the financial condition of its Restricted Subsidiaries and at such other times as the Administrative Agent may reasonably request, an updated customer list for each Borrower and its Unrestricted Subsidiaries, which list shall state the customer’s name, mailing address and phone number, delivered electronically in a text formatted file format reasonably acceptable to the Administrative Agent and Agent, certified as true and correct by a Financial Officer of the Borrower Representative;
(j) promptly upon Company as presenting fairly in all material respects the Administrative Agent’s request:
(i) copies financial condition and results of invoices issued by the Borrowers in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto; and
(ii) a schedule detailing the balance of all intercompany accounts operations of the Loan Parties;
(k) at such other times as may be reasonably requested by the Administrative Agent, as Restricted Subsidiaries and Unrestricted Subsidiaries of the period then ended, the Borrowers’ sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journalCompany in accordance with GAAP;
(l) within five days after the first Business Day of each March, a certificate of good standing or the substantive equivalent available in the jurisdiction of incorporation, formation or organization for each Loan Party from the appropriate governmental officer in such jurisdiction;
(m) promptly after any request therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that any Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that any Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if a Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the applicable Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and
(n) promptly following any request therefor, such other information regarding the operations, changes in ownership of Equity Interests, business affairs and financial condition of Parent (to the extent not readily available on the website of the SEC at xxxx://xxx.xxx.xxx), Intermediate Holdco, any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request. The Company represents and warrants that it, its controlling Person and any Subsidiary, in each case, if any, either (i) has no registered or publicly traded securities outstanding, or (ii) files its financial statements with the SEC and/or makes its financial statements available to potential holders of its 144A securities, and, accordingly, the Company hereby (i) authorizes the NAI-1500544456v14 80 Administrative Agent to make the financial statements to be provided under Section 5.01(a) and (b) above (collectively or individually, as the context requires, the “Financial Statements”), along with the Loan Documents, available to Public-Xxxxxx and (ii) agree that at the time such Financial Statements are provided hereunder, they shall already have been made available to holders of its securities. The Company will not request that any other material be posted to Public-Xxxxxx without expressly representing and warranting to the Administrative Agent in writing that such materials do not constitute material non-public information within the meaning of the federal securities laws or that the Company has no outstanding publicly traded securities, including 144A securities.
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Financial Statements; Borrowing Base and Other Information. The Borrowers will Loan Parties shall promptly furnish to the Administrative Agent, in sufficient copies for distribution by the Administrative Agent and to each Lender, in such detail as the Administrative Agent or the Lenders shall request, the following:
(a) within As soon as available, but in any event not later than ninety (90) days after the end close of each fiscal year (commencing with the fiscal year ending November 30, 2016), audited consolidated balance sheets, and income statements, cash flow statements and changes in stockholders’ equity for the Borrower and its Subsidiaries, on a consolidated basis, for such fiscal year, and the accompanying notes thereto, setting forth in each case in comparative form figures for the previous fiscal year, all in reasonable detail, fairly presenting the financial position and the results of operations of the CompanyBorrower and its Subsidiaries as at the date thereof and for the fiscal year then ended, and prepared in accordance with GAAP. Such statements shall be examined in accordance with generally accepted auditing standards by and, in the Specified Audited Annual Financial Statementscase of such statements performed on a consolidated basis, accompanied by a report and opinion by Ernst & Young LLP, any other independent registered public accountants or such other independent registered public accountants of recognized national standing reasonably acceptable to the Administrative Agent, which report and opinion shall be prepared in accordance with generally accepted auditing standards and 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;
(b) within forty-five As soon as available, but in any event not later than thirty (4530) days after the end of each month, unaudited consolidated balance sheets of the first three fiscal quarters Borrower and its Subsidiaries, on a consolidated basis, as at the end of each such month, and unaudited consolidated income statements and cash flow statements for the Borrower and its Subsidiaries, on a consolidated basis, for such month and for the period from the beginning of the fiscal year to the end of such month, all in reasonable detail, fairly presenting the financial position and results of operations of the CompanyBorrower and its Subsidiaries as at the date thereof and for such periods, and, in each case, in comparable form, figures for the Specified Quarterly Financial Statementscorresponding period for the prior fiscal year and for the Borrower’s budget, and prepared in accordance with GAAP applied consistently as with the audited financial statements required to be delivered pursuant to Section 5.01(a); provided, however, that monthly cash flow statements will be prepared in a manner consistent with the unaudited cash flow statements delivered to the Administrative Agent prior to the Effective Date and which is not in accordance with GAAP. The Borrower shall certify by a certificate signed by its chief financial officer or treasurer substantially in the form of Exhibit D that all such statements (except the monthly cash flow statements) have been prepared in accordance with GAAP and present fairly the financial position of the Borrower and its Subsidiaries as at the dates thereof and its results of operations for the periods then ended, subject to normal year-end adjustments;
(c) during any Increased Reporting PeriodWith the annual audited financial statements delivered pursuant to Section 5.01(a), and within thirty (30) days after the end of each fiscal month of the Company (beginning with the first fiscal month ending after such Increased Reporting Period commences), the Specified Monthly Financial Statements;
(d) concurrently with any delivery of financial statements under clause (a), (b) or (c) abovemonth, a certificate of a Financial Officer the chief financial officer or treasurer of the Borrower Representative substantially in substantially the form of Exhibit C (i) certifying, in the case of the financial statements delivered under clause (b) or (c), NAI-1500544456v14 78 as to the matters described in the definitions of Specified Quarterly Financial Statements or Specified Monthly Financial Statements, as applicable, (ii) certifying as to whether a Default has occurred and is continuing and, if a Default has occurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iii) D setting forth reasonably detailed in reasonable detail the calculations of the Fixed Charge Coverage Ratio (whether or not required to be tested pursuant to Section 6.12) and, if applicable, demonstrating establish that the Loan Parties were in compliance with Section 6.12, and (iv) stating whether any change in GAAP or in the application thereof has occurred since the date of the audited financial statements referred to covenant set forth in Section 3.04 and5.27, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(e) as soon as available but in any event no later than the end of, and no earlier than 30 days prior to the end of, each fiscal year of the Company, a copy of the plan and forecast (including a projected consolidated and consolidating balance sheet, income statement and funds flow statement) of the Company and its Subsidiaries for each month of the upcoming fiscal year (the “Projections”) in form reasonably satisfactory to the Administrative Agent;
(f) on or before each Borrowing Base Reporting Date, as of during the period then ended, a Borrowing Base Certificate and supporting information covered in connection therewith, together with any additional reports with respect to the Borrowing Base as the Administrative Agent may reasonably request;
(g) on or before each Borrowing Base Reporting Date, as of the period then ended, all delivered electronically in a text formatted file acceptable to the Administrative Agent:
(i) a detailed aging of the Borrowers’ Accounts, including all invoices aged by invoice date and due date (with an explanation of the terms offered), prepared in a manner reasonably acceptable to the Administrative Agent, together with a summary specifying the name, address, and balance due for each Account Debtor;
(ii) a worksheet of calculations prepared by the Borrowers to determine Eligible Accounts, such worksheets detailing the Accounts excluded from Eligible Accounts and the reason for such exclusion; provided, that during any Increased Reporting Period, the Borrower shall only be required to provide the information in this clause (ii) on a monthly basis;
(iii) a reconciliation of the Borrowers’ Accounts between (A) the amounts shown in the Borrowers’ general ledger and financial statements and as at the reports delivered pursuant to clause end thereof. Within thirty (i30) above and (B) the amounts and dates shown in the reports delivered pursuant to clause (i) above and the Borrowing Base Certificate delivered pursuant to clause (g) above as of such date;
(iv) a reconciliation of the loan balance per the Borrowers’ general ledger to the loan balance under this Agreement; and
(v) a daily schedule of cash receipts from Eligible Accounts. NAI-1500544456v14 79 (h) on or before each Borrowing Base Reporting Date, as of the month most recently ended, a schedule and aging of the Borrowers’ accounts payable, delivered electronically in a text formatted file reasonably acceptable to the Administrative Agent;
(i) within 45 days after the end of each month, a certificate of the chief financial officer or treasurer of the Borrower stating that, except as explained in reasonable detail in such certificate, (A) all of the representations and warranties of the Loan Parties contained in this Agreement and the other Loan Documents are correct and complete in all material respects as at the date of such certificate as if made at such time, except for those that speak as of a particular date, (B) the Loan Parties are, at the date of such certificate, in compliance in all material respects with all of their respective covenants and agreements in this Agreement and the other Loan Documents and (C) no Default or Event of Default then exists or existed during the period covered by the financial statements for such month. If such certificate discloses that a representation or warranty is not correct or complete, or that a covenant has not been complied with, or that a Default or Event of Default existed or exists, such certificate shall set forth what action the Loan Parties have taken or propose to take with respect thereto;
(d) Within ninety (90) days after the commencement of each fiscal year (commencing with the fiscal year beginning December 1, 2016), annual forecasts (to include forecasted consolidated balance sheets, income statements and at such other times as cash flow statements) for the Administrative Agent may reasonably request, an updated customer list for each Borrower and its Subsidiaries, which list shall state the customer’s name, mailing address and phone number, delivered electronically in on a text formatted file acceptable to the Administrative Agent and certified as true and correct by a Financial Officer of the Borrower Representative;
(j) promptly upon the Administrative Agent’s request:
(i) copies of invoices issued by the Borrowers in connection with any Accounts, credit memos, shipping and delivery documents, and other information related thereto; and
(ii) a schedule detailing the balance of all intercompany accounts of the Loan Parties;
(k) at such other times as may be reasonably requested by the Administrative Agentconsolidated basis, as at the end of the period then ended, the Borrowers’ sales journal, cash receipts journal (identifying trade and non-trade cash receipts) and debit memo/credit memo journal;
(l) within five days after the first Business Day of each March, a certificate of good standing or the substantive equivalent available in the jurisdiction of incorporation, formation or organization for each Loan Party from the appropriate governmental officer in such jurisdiction;
(m) promptly after any request therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1) of ERISA that any Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that any Borrower or any ERISA Affiliate may request with respect to any Multiemployer Plan; provided that if a Borrower or any ERISA Affiliate has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan, the applicable Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies quarter of such documents and notices promptly after receipt thereof; and
(n) promptly following any request therefor, such other information regarding the operations, changes in ownership of Equity Interests, business affairs and financial condition of Parent (to the extent not readily available on the website of the SEC at xxxx://xxx.xxx.xxx), Intermediate Holdco, any Loan Party or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender may reasonably request. The Company represents and warrants that it, its controlling Person and any Subsidiary, in each case, if any, either (i) has no registered or publicly traded securities outstanding, or (ii) files its financial statements with the SEC and/or makes its financial statements available to potential holders of its 144A securities, and, accordingly, the Company hereby (i) authorizes the NAI-1500544456v14 80 Administrative Agent to make the financial statements to be provided under Section 5.01(a) and (b) above (collectively or individually, as the context requires, the “Financial Statements”), along with the Loan Documents, available to Public-Xxxxxx and (ii) agree that at the time such Financial Statements are provided hereunder, they shall already have been made available to holders of its securities. The Company will not request that any other material be posted to Public-Xxxxxx without expressly representing and warranting to the Administrative Agent in writing that such materials do not constitute material non-public information within the meaning of the federal securities laws or that the Company has no outstanding publicly traded securities, including 144A securities.fiscal year;
Appears in 1 contract
