Financial Statements, Certificates and Information. The Borrowers will deliver to the Lenders: (a) as soon as practicable, but, in any event not later than 90 days after the end of each fiscal year of the Parent, the consolidated and consolidating balance sheets of the Parent as at the end of such year, statements of cash flows, and the related consolidated and consolidating statements of operations, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP and, with respect to the consolidated financial statements, Certified by the Accountants; (b) as soon as practicable, but in any event not later than 45 days after the end of each fiscal quarter of the Borrowers, copies of the consolidated and consolidating balance sheets and statement of operations of the Parent as at the end of such quarter, subject to year end adjustments, the related statement of cash flows, all in reasonable detail and prepared in accordance with GAAP, with a certification by the principal financial or accounting officer of each Borrower (the "CFO") that the consolidated financial statements are prepared in accordance with GAAP and fairly present the consolidated financial condition of the Borrowers as at the close of business on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended; (c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto; (d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers; (e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of the Borrowers; and
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Nationsrent Inc), Revolving Credit and Term Loan Agreement (Nationsrent Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGenerally Accepted Accounting Principles, with respect and certified without qualification by PricewaterhouseCoopers LLP or by another "big four" certified public accounting firm or by other independent certified public accountants satisfactory to the consolidated financial statementsAdministrative Agent, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPGenerally Accepted Accounting Principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to as soon as practicable, but in any event within thirty (a30) and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of days after the end of each month in each fiscal year of the applicable period Borrower, unaudited monthly consolidated financial statements of the Borrower and setting forth its Subsidiaries for such month and unaudited monthly consolidating financial statements of the Borrower and its Subsidiaries for such month, each prepared in reasonable detail computations evidencing such complianceaccordance with Generally Accepted Accounting Principles, PROVIDED THAT if together with a certification by the Borrowers shall at Controller, Senior Vice President of Finance or other principal financial or accounting officer of the time of issuance of such certificate have knowledge of any Default or Event of Default, Borrower that the Borrowers shall include information contained in such certificate or otherwise deliver forthwith to financial statements fairly presents the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies financial condition of the financial statements, financial projections, annual budget, variance reports Borrower and business plan concerning its Subsidiaries on the Borrowers in substantially the same form in which such information is supplied date thereof (subject to the boards of directors of the Borrowersquarterly and year-end adjustments);
(e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of the Borrowers; and
Appears in 2 contracts
Samples: Subordination Agreement (BTHC VII Inc), Bridge Term Loan Credit Agreement (Whitehall Jewellers Inc)
Financial Statements, Certificates and Information. The CML and the Borrowers will deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentCML, the consolidated balance sheet of CML and its Subsidiaries and the consolidating balance sheets of the Parent CML and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements of operationsincome and consolidating statements of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and all such consolidated statements to be certified without qualification by Deloitte and Touche LLP or by other independent certified public accountants satisfactory to the consolidated financial statementsAdministrative Agent, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of 62 -54- this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; PROVIDED that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfirst three fiscal quarters in each fiscal year of CML, copies of the unaudited consolidated balance sheet of CML and its Subsidiaries and the unaudited consolidating balance sheets of CML and statement of operations of the Parent its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statements of income and consolidating statements of cash flow for the portion of CML's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each Borrower (the "CFO") CML that the consolidated information contained in such financial statements are prepared in accordance with GAAP fairly presents the financial position of CML and fairly present the consolidated financial condition of the Borrowers as at the close of business its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) as soon as practicable, but in any event within thirty (30) days after the end of the first eleven months in each fiscal year of CML, copies of the unaudited monthly consolidated balance sheet of CML and its Subsidiaries and the unaudited consolidating balance sheets of CML and its Subsidiaries, each as at the end of such month and the related consolidated statement of income, consolidated statement of cash flow, consolidating statements of income and consolidating statements of cash flow for such month, each prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of CML that the information contained in such financial statements fairly presents the financial condition of CML and its Subsidiaries on the date thereof (subject to quarter and year-end adjustments);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of CML in substantially the form of EXHIBIT D E hereto (the a "Compliance CertificateCOMPLIANCE CERTIFICATE") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in ss.11 and (if applicable) reconciliations to reflecT changes in generally accepted accounting principles since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of CML;
(f) (i) within three (3) Business Days after the end of each calendar week or at such earlier time as the Administrative Agent may reasonably request, a Borrowing Base Report setting forth the Borrowing Bases as at the end of such calendar week or other date so requested by the Administrative Agent and (ii) within fifteen (15) days after the end of each calendar month, a Borrowing Base Report setting forth the Borrowing Bases as at the end of such calendar month, containing 63 -55- such adjustments to the applicable weekly Borrowing Base Reports as may be appropriate;
(g) within fifteen (15) days after the end of each calendar month, an Accounts Receivable aging report with respect to the Borrowers;
(h) from time to time as the Administrative Agent may request detailed management prepared reports summarizing the Borrowers' inventory, including information on the aging and obsolence of such inventory;
(i) as soon as practicable, but in any event not later than thirty (30) days prior to the beginning of each fiscal year, management-prepared financial forecasts of CML and its Subsidiaries with respect to such fiscal year;
(j) prior to the opening by any Borrower of any new retail store, distribution center or manufacturing facility at which Eligible Inventory or Eligible NordicTrack Inventory, as the case may be, is to be located, a supplement to SCHEDULE 2 hereto in the form of EXHIBIT I hereto, listing any additions or deletions to the list of retail stores, distribution centers and manufacturing facilities of the Borrowers located in the United States, which supplement, together with SCHEDULE 2 hereto and any prior supplements, shall be deemed to constitute SCHEDULE 2 for all purposes of this Credit Agreement; and
(k) from time to time such other financial data and information (including accountants' management letters) as any Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Each Borrower will deliver to each of the Lenders:Lenders (other than with respect to ss.8.4(g) hereof which shall be delivered to the Administrative Agent only):
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrowers, the consolidated and the consolidating balance sheets of the Parent Borrowers and their Subsidiaries, as at the end of such year, statements of cash flows, and the related consolidated and consolidating statements of operationsincome and statements of cash flow, for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, and audited without qualification (other than a qualification regarding changes in generally accepted accounting principles) by Ernst & Young LLP (with respect to the consolidated financial statementsstatements only) or by other independent certified public accountants satisfactory to the Administrative Agent, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default, together with any and all management letters to the Borrowers from Borrowers' independent certified public accountants during such fiscal year; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each of the fiscal quarter quarters of the Borrowers, copies of the unaudited consolidated and consolidating balance sheets and statement of operations of the Parent Borrowers and their Subsidiaries, as at the end of such quarter, subject to year end adjustments, and the related statement consolidated and consolidating statements of income and consolidated statements of cash flowsflow for the portion of Borrowers' fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles for interim statements, together with a certification by the principal financial or accounting officer of each Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business and their Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) as soon as practicable, but in any event not later than twenty (20) days after the end of each calendar month, management prepared unaudited consolidated and consolidating monthly financial statements of the Borrowers and their Subsidiaries for such month;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the chief financial officer, controller or senior vice-president-finance of each Borrower in substantially the form of EXHIBIT D Exhibit B hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed compliance with the SEC or sent covenants contained in ss.10 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the stockholders of the Borrowers; andBalance Sheet Date;
Appears in 1 contract
Samples: Credit Agreement (Starter Corp)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to the LendersAdministrative Agent:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated and consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries as at the end last day of such fiscal year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow for such fiscal year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP and, with respect (except as required by a change in GAAP or as concurred to the consolidated financial statements, Certified by the Accountants), and certified, without qualification and without an expression of uncertainty as to the ability of the Borrower or any of its Subsidiaries to continue as going concerns, by the Accountants, together with a written statement from the Accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 sixty (60) days after the end of each fiscal quarter of the BorrowersBorrower, copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries as at the end last day of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to the absence of footnotes and year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit C hereto (the "a “Compliance Certificate"”) certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliancecompliance with the covenants contained in §9 and (if applicable) reconciliations to reflect changes in GAAP since December 31, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto2006;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersBorrower;
(e) upon request of the Administrative Agent, the Borrower’s annual business plan; and
(f) from time to time such other financial data and information (including accountants’ management letters) as the Administrative Agent may reasonably request. The Administrative Agent will promptly deliver to each Lender via Intralinks or another similar electronic system (the “Platform”) (or other method of delivery permitted thereunder) copies of all information received by it pursuant to this §7.4. The Borrower hereby acknowledges that (i) the Administrative Agent will make available to Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting Borrower Materials on Intralinks or the Platform and (ii) 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 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 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
Samples: Senior Unsecured Credit Agreement (Barnes Group Inc)
Financial Statements, Certificates and Information. The Borrowers will deliver to the LendersBanks the following:
(a) as soon as practicable, but, in any event not later than 90 days after the end of each fiscal year of the ParentBorrowers and the Excluded Subsidiaries, the (i) consolidated balance sheets of the Borrowers and the Excluded Subsidiaries, and (ii) consolidating balance sheets of each of the Parent Borrowers and the Excluded Subsidiaries, as at the end of such year, statements of cash flows, and the related consolidated and consolidating statements of operations, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated and consolidating financial statements to be in reasonable detail, prepared prepared, in accordance with GAAP and, with respect to the consolidated financial statements, Certified by the Accountants. In addition, simultaneously therewith, the Borrowers will and will cause the Excluded Subsidiaries to use their best efforts to provide the Banks with a written statement from such Accountants to the effect that the Borrowers and the Excluded Subsidiaries are in compliance with the covenants set forth in Section 9 hereof, and that, in making the examination necessary to said certification, nothing has come to the attention of such Accountants that would indicate that any Default or Event of Default exists, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; PROVIDED, that such Accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 days after the end of each fiscal quarter of the BorrowersBorrowers and the Excluded Subsidiaries, copies of (i) the consolidated balance sheets and statement of operations of the Borrowers and the Excluded Subsidiaries, and (ii) consolidating balance sheets and statement of operations of each of the Parent Borrowers and the Excluded Subsidiaries, as at the end of such quarterquarter including profit and loss statements by division, subject to year end adjustments, and the related statement of cash flows, all in reasonable detail and prepared in accordance with GAAP, GAAP with a certification by the principal financial or accounting officer of each Borrower the Borrowers and the Excluded Subsidiaries (the "CFO") that the consolidated financial statements are were prepared in accordance with GAAP and fairly present the consolidated financial condition of the Borrowers and the Excluded Subsidiaries as at the close of business on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers and the Excluded Subsidiaries are in compliance with the covenants contained in ss.ss.7Sections 7, 8 and 9 hereof, hereof as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT that if the Borrowers and the Excluded Subsidiaries shall at the time of issuance of such certificate have or at any other time obtain knowledge of any Default or Event of Default, the Borrowers shall will and will cause the Excluded Subsidiaries to include in such certificate or otherwise deliver forthwith to the Lenders Banks a certificate specifying the nature and period of existence thereof and what action the Borrowers and the Excluded Subsidiaries propose to take with respect theretothereto and a certificate of the Borrowers' and the Excluded Subsidiaries' Chief Operating Officer in the form attached hereto as EXHIBIT E with respect to environmental matters;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the Parent or any of the Borrowers;
(e) as soon as practicable, but in any event not later than 15 days after the end of each fiscal quarter, copies of the Borrowers' and the Excluded Subsidiaries' profit and loss statements by division, subject to year end adjustments, and the related statements of cash flows, all in reasonable detail and prepared in accordance with GAAP;
(f) as soon as practicable, but in any event not later than fifteen (15) days prior to the commencement of the next fiscal year of the Borrowers and the Excluded Subsidiaries, a copy of the annual budget, projections and business plan for the Borrowers and the Excluded Subsidiaries for such fiscal year; and
(g) from time to time such other financial data and other information (including accountants' management letters) as the Banks may reasonably request; The Borrowers hereby authorize the Banks to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by law; PROVIDED, HOWEVER, that the Banks shall, to the extent practicable and allowable under law, notify the Borrowers within a reasonable period prior to the time any such disclosure is made; and PROVIDED FURTHER, this authorization shall not be deemed to be a waiver of any rights to object to the disclosure by the Banks of any such information which any Borrower has or may have under the federal Right to Financial Privacy Act of 1978, as in effect from time to time.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Credit Parties will deliver to the Administrative Agent and, upon request, to the Lenders:
(a) as soon as practicable, but, but in any event not no later than 90 ninety (90) days after the end of each fiscal year of the Parent, Fiscal Year,
(i) the consolidated and consolidating balance sheets sheet of Parent, the Parent Borrower and their Restricted Subsidiaries, as at the end of such year, statements of cash flowsFiscal Year, and the related consolidated and consolidating statements of income or operations, cash flows and shareholders’ equity for such Fiscal Year, each setting forth in comparative form the figures for the previous fiscal year, Fiscal Year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP and, consistently applied and such consolidated and consolidating financial statements to be audited and accompanied by a report and opinion prepared in accordance with respect generally accepted auditing standards by independent certified public accountants reasonably satisfactory to the Administrative Agent and certified without qualification and without expression of uncertainty as to the ability of Parent, the Borrower and their Restricted Subsidiaries to continue as going concerns (other than a “going concern” qualification resulting from an upcoming maturity under this Agreement or ABL Credit Agreement occurring within one year from the time of such opinion is delivered or a breach of the Financial Maintenance Covenant hereunder or any financial covenant under the ABL Credit Agreement), together with a copy of their accountants’ management letter (if any) for such Fiscal Year and
(ii) a Compliance Certificate duly executed by a Financial Officer of the Borrower, which, among other things,
(A) attaches and certifies to the foregoing consolidated and consolidating financial statements, Certified by accountants statements, management letters and a management discussion and analysis prepared in connection with such financial statements,
(B) certifies that the Accountantsinformation contained in such consolidated and consolidating financial statements fairly presents in all material respects the financial condition of Parent, the Borrower and their Restricted Subsidiaries on the dates indicated therein,
(C) appends computations evidencing the First Lien Net Leverage Ratio and Excess Cash Flow, in each case, for the Reference Period ended as of the last day of such Fiscal Year and specifying whether the Credit Parties have complied with Section 7.13, and
(D) states that such Financial Officer has reviewed this Agreement and the other Loan Documents and has no knowledge of any Default or Event of Default during such Fiscal Year, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the nature thereof;
(b) as soon as practicable, but in any event not no later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowers, copies first three Fiscal Quarters of each Fiscal Year
(i) the consolidated and consolidating balance sheets sheet of Parent, the Borrower and statement of operations of the Parent their Restricted Subsidiaries, as at the end of such quarterFiscal Quarter, subject to year end adjustments, and the related statement consolidated and consolidating statements of income or operations, cash flowsflows and shareholders’ equity for such Fiscal Quarter and the portion of the Fiscal Year through the end of such Fiscal Quarter, each setting forth in comparative form the figures for the previous Fiscal Quarter of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year and all such consolidated and consolidating financial statements to be in reasonable detail and prepared in accordance with GAAPdetail, with a certification by the principal financial or accounting officer of each Borrower (the "CFO") that the consolidated financial statements are prepared in accordance with GAAP consistently applied and
(ii) a Compliance Certificate duly executed by a Financial Officer of the Borrower, which, among other things,
(A) attaches and certifies to the foregoing consolidated and consolidating financial statements and a management discussion and analysis prepared in connection with such financial statements (subject to year-end adjustments and the absence of footnotes),
(B) certifies that the information contained in such consolidated and consolidating financial statements fairly present presents in all material respects the consolidated financial condition of Parent, the Borrowers Borrower and their Restricted Subsidiaries on the dates indicated therein,
(C) appends computations evidencing the First Lien Net Leverage Ratio for the Reference Period ended as of the last day of such Fiscal Quarter and specifying whether the Credit Parties have complied with Section 7.13, and
(D) states that such Financial Officer has reviewed this Agreement and the other Loan Documents and has no knowledge of any Default or Event of Default during such Fiscal Quarter, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the nature thereof;
(c) as soon as practicable, but in any event no later than forty-five (45) days after the end of each of the first two Fiscal Months of each Fiscal Quarter
(i) the unaudited monthly consolidated and consolidating financial statements of Parent, the Borrower and their Restricted Subsidiaries for such Fiscal Month, including the consolidating balance sheet of Parent, the Borrower and their Restricted Subsidiaries, as at the close end of business such Fiscal Month, the related consolidating statements of income or operations and cash flows for such Fiscal Month and for the portion of the Fiscal Year then ended, each setting forth in comparative form the figures for the corresponding Fiscal Month of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year, each, prepared in accordance with GAAP consistently applied and
(ii) a Compliance Certificate duly executed by a Financial Officer of the Borrower, which, among other things,
(A) attaches and certifies to the foregoing consolidated financial statements and a management discussion and analysis prepared in connection with such financial statements (subject to year-end adjustments and the absence of footnotes),
(B) certifies that the information contained in such financial statements fairly presents in all material respects the financial condition of Parent, the Borrower and their Restricted Subsidiaries on the date thereof (subject to year-end adjustments) adjustments and the results absence of operations for the period then ended;footnotes), and
(cC) simultaneously with states that such Financial Officer has reviewed this Agreement and the delivery of the financial statements referred to in (a) other Loan Documents and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have has no knowledge of any Default or Event of DefaultDefault during such Fiscal Month, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the Borrowers shall include in such certificate or otherwise deliver forthwith nature thereof to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoAdministrative Agent’s reasonable satisfaction;
(d) annually not later than January 31 of each Fiscal Year, an annual business plan and projections for Parent, the Borrower and their Restricted Subsidiaries for the following Fiscal Year on a monthly basis (such projections to include consolidated balance sheets, statements of cash flows, statements of income or at operations of Parent, the Borrower and their Restricted Subsidiaries, in each case prepared on a month-by-month basis and such other time as may be matters reasonably requested by the Administrative Agent);
(e) promptly upon receipt thereof, copies of the financial statementsany detailed audit reports, financial projectionscontrol reports, annual budgetmanagement letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Credit Parties by independent accountants other consultants or advisors in connection with the accounts or books of ay Credit Party or any Restricted Subsidiary or any audit of any of them;
(f) immediately, variance reports and business plan in any event within two (2) Business Days after receipt by a member of Senior Management thereof by any Credit Party or any Restricted Subsidiary thereof, copies of each notice or other correspondence received from any Governmental Authority concerning any material investigation by such agency regarding financial or other operational results of any Credit Party or any Restricted Subsidiary;
(g) promptly following the Borrowers request of the Administrative Agent, a report summarizing the insurance coverage in effect for each Credit Party and its Restricted Subsidiaries and promptly following the modification, renewal, replacement of any insurance policy of any Credit Party or its Restricted Subsidiaries, updated insurance certificates and endorsements evidencing such coverage;
(h) as soon as practicable, but in any event no later than ten (10) days following the end of each Fiscal Quarter (or more frequently at the election of the Credit Parties), either (x) updated Schedules 5.07, 5.17, and 7.08, an updated Exhibit A to the IP Security Agreements and an updated list of bank accounts in the Perfection Certificate, in each case in substantially the same form as the most recent schedule of the same delivered to the Administrative Agent or (y) for any of the foregoing for which there has been no change since the previous Fiscal Quarter, a certificate confirming that there has been no change in such information, which such information is supplied updated schedules or certificate of no change shall be satisfactory to the boards of directors Administrative Agent; and
(i) promptly following a request therefor, from time to time such sales projections, budgets, operating plans or other financial data or information as the Administrative Agent or any Lender may reasonably request. Notwithstanding the foregoing, the obligations to provide certain financial statements in Section 6.04(a)(i) and (b)(i) may also be satisfied by the furnishing of the Borrowers;
Form 10-K or 10-Q, as applicable, of Parent (eor Parent’s direct or indirect parent company) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent otherwise made available to the stockholders Administrative Agent for delivery to each Lender, in each case, within the time periods specified in Section 6.04(a) and (b); provided, that to the extent such financial statements relate to any Person or Persons other than Parent, the Borrower and their Restricted Subsidiaries, on a standalone basis, (including, without limitation, any Unrestricted Subsidiaries or any direct or indirect parent of Parent), such financial statements shall be accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such Person or Persons, on the one hand, and Parent, the Borrower and their Restricted Subsidiaries, on a standalone basis, on the other hand, which consolidating information shall be certified by a Financial Officer of the Borrowers; andBorrower as having been fairly presented in all material respects.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to the LendersAgent:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentTrust, the audited consolidated and consolidating balance sheets sheet of the Parent as Trust and its Subsidiaries at the end of such year, statements of cash flows, and the related audited consolidated and consolidating statements of operationsincome, changes in shareholder’s equity and cash flows for the year then ended, in each case, setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP (which may be provided by inclusion in the Form 10-K of the Trust filed with the SEC for such period and delivered to the Agent), and, in each case, accompanied by an auditor’s report prepared without qualification by the Accountants (and the Borrower also shall deliver the foregoing for FPLP on a consolidated basis); together with respect (i) a certification by the principal financial or accounting officer of the Borrower and the Trust that the information contained in such financial statements fairly presents the financial position of the Trust and its Subsidiaries on the date thereof (which may be provided by inclusion in the Form 10-K of the Trust filed with the SEC for such period and delivered to the consolidated Agent) and (ii) a written statement from such Accountants to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default under §10 or otherwise under the provisions of this Agreement relating to the financial statementscondition of the Trust or any of its Subsidiaries, Certified by or of any facts or circumstances that would cause the AccountantsTrust not to continue to qualify as a REIT for federal income tax purposes, or, if such Accountants shall have obtained knowledge of any then existing Default, Event of Default or such facts or circumstances, they shall make disclosure thereof in such statement;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each of its March 31, June 30 and September 30 fiscal quarter of the Borrowersquarters, copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Trust and its Subsidiaries, as at the end of such quarter, subject to year end adjustments, and the related statement unaudited consolidated statements of income, changes in shareholders’ equity and cash flowsflows for the portion of the Trust’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPGAAP (which may be provided by inclusion in the Form 10-Q of the Trust filed with the SEC for such period and delivered to the Agent), together with a certification by the principal financial or accounting officer of each the Borrower (and the "CFO") Trust that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Trust and its Subsidiaries on the date thereof (which may be provided by inclusion in the Form 10-Q of the Trust filed with the SEC for such period and delivered to the Agent) (subject to year-end adjustments) adjustments none of which shall be materially adverse and the results absence of operations footnotes) (and the Borrower also shall deliver the foregoing for the period then endedFPLP on a consolidated basis);
(c) as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal years, a rent roll and operating statement in respect of each Eligible Borrowing Base Property, certified by the chief financial or accounting officer of the Borrower as true and correct;
(d) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Borrower, a rent roll and operating statement in respect of each Eligible Borrowing Base Property, certified by the chief financial or accounting officer of the Borrower as true and correct;
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement Certificate of Compliance in the form of EXHIBIT D Exhibit C hereto (the "Compliance Certificate") certified signed by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as chief financial or accounting officer of the end of the applicable period Borrower, and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if compliance with the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include covenants contained in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto§10;
(df) annually promptly as they become available, a copy of each report submitted to the Borrower, the Trust or at such other time as may be reasonably requested any of their respective subsidiaries by the Administrative AgentAccountants in connection with each annual audit of the books of the Borrower, the Trust or such Subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase of the business of the Borrower, the Trust or any such Subsidiary;
(g) contemporaneously with (or promptly after) the filing or mailing thereof, copies of the all material of a financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied nature sent to the boards holders of directors any Indebtedness of the BorrowersBorrower or any Subsidiary Guarantor for borrowed money (other than the Loans), to the extent that the information or disclosure contained in such material refers to or could reasonably be expected to have a material adverse effect on the business, operations, assets, condition (financial or otherwise) or properties of the Trust, FPLP or any other member of the Potomac Group;
(eh) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of the BorrowersTrust;
(i) unless delivered pursuant to clauses (a) or (b) above, as applicable, as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Trust, copies of the Form 10-K statement filed by the Trust with the SEC for such fiscal year, and as soon as practicable, but in any event not later than fifty (50) days after the end of each fiscal quarter of the Trust copies of the Form 10-Q statement filed by the Trust with the SEC for such fiscal quarter, provided that, in either case, if the SEC has granted an extension for the filing of such statements, the Trust shall deliver such statements to the Agent within ten (10) days after the filing thereof with the SEC;
(j) in the case of the Borrower and the Trust, as soon as practicable, but in any event not later than thirty (30) days prior to the end of each of their respective fiscal years, a business plan for the next fiscal year (including pro forma projections for such period);
(k) if requested by the Agent, a certification by the chief financial or accounting officer of the Borrower of the state and federal taxable income of the Trust and its Subsidiaries as of the end of any applicable fiscal year; and
(l) from time to time such other financial data and other information about the Borrower, the Trust, the Subsidiary Guarantors, their respective Subsidiaries, the Real Estate Assets (including the Eligible Borrowing Base Properties), the Pledged Interests and the Partially-Owned Entities as the Agent or any Lender (through the Agent) may reasonably request. Without limitation of the foregoing, at the request of the Agent, the Borrower will deliver to the Agent information relating to (i) the determination of the existence or absence of a Disqualifying Environmental Event or a Disqualifying Structural Event, (ii) title to any Eligible Borrowing Base Property, and (iii) insurance coverage.
Appears in 1 contract
Samples: Secured Term Loan Agreement (First Potomac Realty Trust)
Financial Statements, Certificates and Information. The Borrowers will deliver to the LendersAdministrative Agent:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrowers, the consolidated and consolidating balance sheets of the Parent for GWI and its Subsidiaries, in each case as at the end of such fiscal year, statements of cash flows, and the related consolidated and consolidating statements of operationsincome and cash flow for GWI and its Subsidiaries for the fiscal year then ended, each setting forth in comparative form the figures for the previous fiscal year, and all such consolidated and consolidating financial statements to be in reasonable detail, detail and prepared in accordance with GAAP andGAAP, with respect and all such consolidated statements to be audited without qualification by PriceWaterhouseCoopers LLP or by other independent certified public accountants satisfactory to the consolidated financial statementsAdministrative Agent, Certified by together with (i) a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default and (ii) their accountants’ management letter, if any, relating to such fiscal year;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each of the first three fiscal quarter quarters (and not later than ninety (90) days after the end of the fourth fiscal quarter) of the Borrowers, copies of the unaudited consolidated and consolidating balance sheets for GWI and statement of operations of the Parent its Subsidiaries, in each case as at the end of such fiscal quarter, subject to year end adjustments, and the related statement unaudited consolidated statements of income and cash flowsflow for GWI and its Subsidiaries for the portion of the Borrowers’ fiscal year then elapsed, each setting forth in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year, and all such consolidated statements to be in reasonable detail and prepared in accordance with GAAP, as well as unaudited supporting schedules, aggregated in a manner consistent with management’s internal view of the business along with an explanation, if necessary, of any material change in the form of presentation from historical reporting practices, presenting the consolidating balance sheets and statements of income of GWI and its Subsidiaries, together with a certification by the principal financial or accounting officer officers of each Borrower (the "CFO") Borrowers that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present the consolidated financial condition position of the Borrowers as at the close of business and their Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) prior to the Voting Trust Termination Date, as soon as practicable, but in any event not later than ninety-five (95) days after the end of each fiscal year of RailAmerica, the consolidated balance sheets for RailAmerica and its Subsidiaries, in each case as at the end of such fiscal year, and the related consolidated statements of income and cash flow for RailAmerica and its Subsidiaries for the fiscal year then ended, each setting forth in comparative form the figures for the previous fiscal year, and all such consolidated statements to be in reasonable detail and prepared in accordance with GAAP, and all such consolidated statements to be audited without qualification by Ernst & Young LLP or by other independent certified public accountants satisfactory to the Administrative Agent, together with their accountants’ management letter relating to such fiscal year;
(d) prior to the Voting Trust Termination Date, as soon as practicable, but in any event not later than fifty (50) days after the end of each of the first three fiscal quarters (and not later than ninety-five (95) days after the end of the fourth fiscal quarter) of RailAmerica, copies of the unaudited consolidated balance sheets of RailAmerica and its Subsidiaries, in each case as at the end of such fiscal quarter, and the related unaudited consolidated statements of income and cash flow for RailAmerica and its Subsidiaries for the portion of the RailAmerica’s fiscal year then elapsed, each setting forth in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year, and all such consolidated statements to be in reasonable detail and prepared in accordance with GAAP, as well as unaudited supporting schedules, aggregated in a manner consistent with management’s internal view of the business along with an explanation, if necessary, of any material change in the form of presentation from historical reporting practices, presenting the consolidating balance sheets and statements of income of RailAmerica and its Subsidiaries, together with a certification by the Trustee that the information contained in such financial statements fairly present the financial position of RailAmerica and its Subsidiaries on the date thereof (subject to year-end adjustments);
(e) simultaneously with the delivery of the financial statements referred to in subsection (a) and subsection (b) above, a statement certified by the principal financial or accounting officers of the Borrowers in substantially the form of EXHIBIT Exhibit D hereto (the "a “Compliance Certificate"”) certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliancecompliance with the covenants contained in §11 and, PROVIDED THAT in each case (if the Borrowers shall at the time of issuance of such certificate have knowledge applicable), an explanation of any Default material change in the form of presentation or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretocalculation from historical reporting practices;
(df) annually or at such other time as may be reasonably requested promptly upon receipt by the Administrative AgentGWI, copies notice of the financial statementsoccurrence of the Voting Trust Termination Date;
(g) no later than March 31 of each fiscal year of the Borrowers, financial projections, the annual budget, variance reports and business plan concerning budgets of the Borrowers and their Subsidiaries and RailAmerica and its Subsidiaries, including projected consolidated balance sheets, in substantially a form consistent with historical reporting practices, for the same end of such fiscal year and consolidated statements of income and cash flow, in a form in which consistent with historical reporting practices, for such information is supplied to the boards of directors fiscal year of the Borrowers;
(eh) contemporaneously withfrom time to time such other financial data and information (including information regarding any aspect of the Voting Trust and associated STB matters) as any Agent or any Lender may reasonably request; and
(i) notice of any material change in accounting policies or financial reporting practices by any Loan Party or any Subsidiary thereof, taken as a whole. The Borrowers hereby acknowledge that (i) the Administrative Agent and/or MLPF&S will make available to Lenders and the Issuing Lender materials and/or information provided by or promptly followingon behalf of Borrowers hereunder (collectively, “Borrowers Materials”) by posting Borrowers Materials on IntraLinks or another similar electronic system (the “Platform”) and (ii) 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 Borrowers or their securities) (each, a “Public Lender”). Borrowers hereby agree (w) to use commercially reasonable efforts to clearly and conspicuously xxxx “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, all Borrowers Materials that are to be made available to Public Lenders; (x) that by marking Borrowers Materials “PUBLIC”, Borrowers shall be deemed to have authorized each Agent, the filing Issuing Lender and the Lenders to treat such Borrowers Materials as either publicly available information or mailing thereof, copies not material information (although it may be sensitive and proprietary) with respect to Borrowers or their securities for purposes of United States federal and state securities laws; (y) that all material of Borrowers Materials marked “PUBLIC” are permitted to be made available through a financial nature filed with the SEC or sent to the stockholders portion of the BorrowersPlatform designated “Public Investor”; andand (z) that the Administrative Agent shall be entitled to treat any Borrowers 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
Samples: Senior Secured Syndicated Facility Agreement (Genesee & Wyoming Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP generally accepted accounting principles, and, with respect except in the case of such consolidating statements, certified without qualification by Deloitte & Touche LLC or any other nationally-recognized independent certified public accounting firm that is currently known as a "Big Six" accounting firm or any other independent certified public accountants reasonably satisfactory to the consolidated financial statementsAgent, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; PROVIDED that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles thereof (subject to year-end adjustments and the absence of footnotes), together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries on the date;
(c) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of the Borrower, unaudited monthly consolidated financial statements are of the Borrower and its Subsidiaries for such month and unaudited monthly consolidating financial statements of the Borrower and its Subsidiaries for such month, each prepared in accordance with GAAP and fairly present the consolidated financial condition of the Borrowers as at the close of business on the date thereof generally accepted accounting principles (subject to year-end adjustments) adjustments and the results absence of operations for footnotes), together with a certification by the period then endedprincipal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial condition of the Borrower and its Subsidiaries on the date thereof;
(cd) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in Section 10 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersBorrower;
(f) from time to time upon request of the Agent, copies of the budget approved by the Borrower's board of directors;
(g) within fifteen (15) days after Borrower's management shall have prepared its draft balance sheet as of the end of any fiscal year of the Borrower, but in any event no later than sixty (60) days after the end of such fiscal year, a statement certified by the principal financial or accounting officer of the Borrower setting forth in reasonable detail the computation of the Consolidated Excess Cash Flow for such fiscal year; and
(h) from time to time such other financial data and information (including accountants, management letters) as the Agent or any Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Stride & Associates Inc)
Financial Statements, Certificates and Information. The Borrowers --------------------------------------------------- will deliver to the LendersBanks:
(a) as soon as practicable, but, in any event not later than 90 days after the end of each fiscal year of the ParentBorrowers, the consolidated and consolidating balance sheets of the Parent Borrowers as at the end of such year, statements of cash flows, and the related consolidated and consolidating statements of operations, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated and consolidating financial statements to be in reasonable detail, prepared prepared, in accordance with GAAP and, with respect to the consolidated financial statements, Certified certified by the Accountants. In addition, simultaneously therewith, the Borrowers shall use their best efforts to provide the Banks with a written statement from such Accountants to the effect that the Borrowers are in compliance with the covenants set forth in (S)8 hereof, and that, in making the examination necessary to said certification, nothing has come to the attention of such Accountants that would indicate that any Default or Event of Default exists, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such Accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 days after the end of each fiscal quarter of the BorrowersBorrowers commencing with the fiscal quarter ending September 30, 1996, copies of the consolidated and consolidating balance sheets and statement of operations of the Parent Borrowers as at the end of such quarter, subject to year end adjustments, and the related statement of cash flows, all in reasonable detail and prepared in accordance with GAAP, GAAP with a certification by the principal financial or accounting officer of each Borrower the Borrowers (the "CFO") that the consolidated financial statements are prepared in accordance with GAAP and fairly present the consolidated financial condition of the Borrowers as at the close of business on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended, subject to year-end adjustments in accordance with GAAP;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, (i) a statement in the form of EXHIBIT D Exhibit C hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7(S)(S)6, 7 and 8 and 9 hereof, hereof as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliancecompliance with (S)(S)7.1, PROVIDED THAT 7.3, 7.9, and 8 hereof, provided that if the Borrowers shall at the time of issuance of such certificate have or at any other time obtain knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders Banks a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
, and (dii) annually or at such other time as may be reasonably requested by a certificate in the Administrative Agent, copies form of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied Exhibit D hereto with respect to the boards of directors operating permits of the Borrowers;
(ed) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersParent; and
(e) from time to time such other financial data and other information (including accountants' management letters) as the Banks or the Agent may reasonably request. The Borrowers hereby authorize the Banks and the Agent to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by law.
Appears in 1 contract
Samples: Revolving Credit Agreement (Eastern Environmental Services Inc)
Financial Statements, Certificates and Information. The Borrowers will deliver to the LendersAdministrative Agent:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrowers, the consolidated and consolidating balance sheets of the Parent for GWI and its Subsidiaries, in each case as at the end of such fiscal year, statements of cash flows, and the related consolidated and consolidating statements of operationsincome and cash flow for GWI and its Subsidiaries for the fiscal year then ended, each setting forth in comparative form the figures for the previous fiscal year, and all such consolidated and consolidating financial statements to be in reasonable detail, detail and prepared in accordance with GAAP andGAAP, and all such consolidated statements to be audited without qualification by PriceWaterhouseCoopers LLP or by other internationally recognized independent certified public accountants, together with respect (i) a written statement from such accountants to the consolidated financial statementseffect that they have read a copy of this Credit Agreement, Certified by and that, in making the Accountantsexamination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default and (ii) their accountants’ management letter, if any, relating to such fiscal year;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each of the first three fiscal quarter quarters (and not later than ninety (90) days after the end of the fourth fiscal quarter) of the Borrowers, copies of the unaudited consolidated and consolidating balance sheets for GWI and statement of operations of the Parent its Subsidiaries, in each case as at the end of such fiscal quarter, subject to year end adjustments, and the related statement unaudited consolidated statements of income and cash flowsflow for GWI and its Subsidiaries for the portion of the Borrowers’ fiscal year then elapsed, each setting forth in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year, and all such consolidated statements to be in reasonable detail and prepared in accordance with GAAP, as well as unaudited supporting schedules, aggregated in a manner consistent with management’s internal view of the business along with an explanation, if necessary, of any material change in the form of presentation from historical reporting practices, presenting the consolidating balance sheets and statements of income of GWI and its Subsidiaries, together with a certification by the principal financial or accounting officer officers of each Borrower (the "CFO") Borrowers that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present the consolidated financial condition position of the Borrowers as at the close of business and their Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of the Borrowers; and
Appears in 1 contract
Samples: Senior Secured Syndicated Facility Agreement (Genesee & Wyoming Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to the LendersAgent:
(a) as soon as practicableavailable, but, but in any event not later than within 90 days after the end of each fiscal year of the ParentBorrower, the consolidated and consolidating balance sheets a copy of the Parent audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at of the end of the year and the related audited consolidated statements of income, of stockholders' equity and of cash flows for such year, statements of cash flows, and the related consolidated and consolidating statements of operations, each setting forth in each case in comparative form the figures for the previous fiscal year, all such consolidated and consolidating together with the opinion of independent certified public accountants of nationally recognized standing, which opinion shall not contain a "going concern" or like qualification or exception, or qualification arising out of the scope of the audit or qualification which would affect the computation of financial statements covenants contained herein other than a qualification of consistency due to be a change in reasonable detail, prepared in accordance the application of GAAP with GAAP and, with respect to which the consolidated financial statements, Certified by the AccountantsBorrower's independent certified public accountants concur;
(b) as soon as practicable, available but in any event not later than 45 days after the end of each fiscal quarterly accounting period (including the quarterly accounting period for the last quarter of each fiscal year), the Borrowers, copies unaudited consolidated balance sheet of the Borrower and its consolidated and consolidating balance sheets and statement Subsidiaries as of operations of the Parent as at the end of each such quarter, subject to year end adjustments, quarter and the related statement unaudited consolidated statements of cash flowsincome and of stockholders' equity of the Borrower and its consolidated Subsidiaries for such quarter and the portion of the fiscal year through such date setting forth in each case in comparative form the figures for the previous year, and including in each case (i) the relevant figures broken down with respect to each division of the Borrower and its Subsidiaries, and (ii) a listing of all residential and commercial lots, land under development and unsold lots, all in reasonable detail and prepared in accordance with GAAP, with a certification of the foregoing certified by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated financial statements are prepared being fairly stated in accordance with GAAP and fairly present the consolidated financial condition of the Borrowers as at the close of business on the date thereof (all material respects, subject to year-end audit adjustments) and the results of operations for the period then ended;
(c) simultaneously concurrently with the delivery of each financial statement referred to in Section 6.4(a) above and each financial statement referred to in Section 6.4(b) above, a certificate of the principal financial or accounting officer of the Borrower in form and substance reasonably satisfactory to the Agent and stated to have been made after due examination by such officer (i) stating that, to the best of such officer's knowledge, the Borrower and each of its Subsidiaries during such period has observed or performed in all material respects all of its covenants and other agreements, and satisfied every condition contained in this Agreement and the Notes to be observed, performed or satisfied by it, and that such officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate, (ii) showing in detail the calculations supporting such statement in respect of the covenants set forth in Section 6.12, Section 7.1, Section 7.3, Section 7.4, Section 7.5, Section 7.6 and Section 7.7, and (iii) showing in detail the outstanding voting capital stock of the Borrower owned or controlled by the Persons described in clause (b) of the definition of the term "Change of Control" as of the Closing Date and as of the date of such financial statement, and indicating the percentage reduction, if any, in the amount of shares owned or controlled by such Persons as of the date of such statement from the amount of shares owned or controlled as of the Closing Date; and
(d) promptly after the same are sent, copies of all financial statements, reports and notices which the Borrower or any of its Subsidiaries sends to its stockholders as stockholders and, so long as the Borrower is a reporting company under the Securities Exchange Act of 1934, promptly after the same are filed, copies of all financial statements which the Borrower may make to, or file with, and copies of all material notices the Borrower receives from, the SEC or any public body succeeding to any or all of the functions of the SEC. The financial statements described in Section 6.4(a) and (b) shall be complete and correct in all material respects and prepared in reasonable detail and in accordance with GAAP (except, in the case of the financial statements referred to in (a) Section 6.4(b), that such financial statements need not contain footnotes and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified may be subject to year-end adjustments). The Borrower will permit any person designated by the CFO that Agent, at the Borrowers are in compliance with Lenders' expense, to visit and inspect the covenants contained in ss.ss.7, 8 properties and 9 hereof, as the books and records of the end Borrower and its Subsidiaries, to examine the Borrower's and its Subsidiaries' records (and to make copies thereof and extracts therefrom), and to discuss the affairs and finances of the applicable period Borrower and setting forth in reasonable detail computations evidencing such complianceits Subsidiaries, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or all at such other time reasonable times and intervals as the Agent or any Lender may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of the Borrowers; andrequest.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers will deliver to the LendersAgent:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of Century Aluminum, commencing with the Parentfiscal year ended December 31, 2001, the consolidated balance sheet of Century Aluminum and consolidating balance sheets of the Parent as at the end of such year, statements of cash flowsits Subsidiaries, and the related consolidated statement of income and consolidating consolidated statements of operationsretained earnings and cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, with respect and certified without qualification by Deloitte & Touche or by other independent certified public accountants satisfactory to the Agent, together with (i) a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default arising as a result of the Borrowers' failure to comply with any of the covenants contained in ss.10, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default and (ii) copies of any management letters delivered to any of the Borrowers by such accountants in connection with such accountants' preparation of such consolidated and consolidating financial statements, Certified by the Accountants;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each of the first three (3) fiscal quarters in each fiscal year of Century Aluminum, commencing with the fiscal quarter of the Borrowersending March 31, 2001, copies of the unaudited consolidated balance sheet of Century Aluminum and consolidating balance sheets and statement of operations of the Parent its Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of retained earnings and cash flowsflow for such quarter and for the portion of Century Aluminum's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer an Authorized Officer of each Borrower (the "CFO") Century Aluminum that the consolidated information contained in such financial statements are prepared in accordance with GAAP fairly presents the financial position of Century Aluminum and fairly present the consolidated financial condition of the Borrowers as at the close of business its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of Century Aluminum, (i) unaudited monthly consolidated financial statements of Century Aluminum and its Subsidiaries for such month, (ii) unaudited monthly consolidating financial statements of Century Aluminum and its Subsidiaries for such month and (iii) unaudited monthly combined financial statements of the Borrowers and the Guarantors for such month and the portion of Century Aluminum's fiscal year and fiscal quarter ended through such date, each prepared in accordance with GAAP, together with a certification by an Authorized Officer of Century Aluminum that the information contained in such financial statements fairly presents the financial condition of Century Aluminum and its Subsidiaries on the date thereof (subject to year-end adjustments);
(d) beginning with the compliance certificate relating to the period ending December 31, 2001, simultaneously with the delivery of the financial statements referred to in subsection (ac) and (b) abovefor periods ending on the last day of a fiscal quarter of Century Aluminum, a statement certified by an Authorized Officer of Century Aluminum in substantially the form of EXHIBIT Exhibit D hereto (the a "Compliance Certificate"), setting forth in reasonable detail computations (i) certified by of the CFO that the Borrowers are in Applicable Margins, (ii) evidencing compliance with the covenants contained in ss.ss.7, 8 ss.10 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(diii) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersCentury Aluminum's consolidated net worth ("Pechiney Net Worth Calculation");
(e) contemporaneously with, or promptly following, after the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of Century Aluminum;
(f) within (A) fifteen (15) days after the end of each calendar month or at such earlier time as the Agent may reasonably request, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month or other date so requested by the Agent, and (B) if at any time the Borrowing Availability is less than $10,000,000, during such time, three (3) Business Days after the end of each calendar week, (i) a report of the sales and collections of each of the Borrowers for the immediately preceding calendar week, and (ii) other information as may from time to time be requested by the Agent relating to the Borrowers' inventory, which information can be provided by the Borrowers without substantially disrupting their respective businesses.
(g) within fifteen (15) days after the end of each calendar month, an Accounts Receivable aging report;
(h) not later than thirty (30) days following the beginning of each fiscal year, beginning with the fiscal year commencing on January 1, 2002, operating budgets and forecasts by division of the Borrowers and Guarantors with respect to such fiscal year, prepared (x) on a consolidated basis and (y) on a quarterly basis, in form satisfactory to the Agent; and
(i) from time to time such other financial data and information (including accountants', management letters) as the Agent may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to the LendersAgent:
(a) as soon as practicable, but, but in any event not later than 90 95 days after the end of each fiscal year of the ParentBorrower and the Guarantor, the audited consolidated and consolidating balance sheets sheet of the Parent as Borrower and its Subsidiaries and the Guarantor at the end of such year, statements of cash flows, and the related audited consolidated and consolidating statements of operationsincome, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, and accompanied by an auditor's report prepared without qualification by Arthxx Xxxexxxx & Xo. or by another "Big Six" accounting firm, and any other information the Banks may need to complete a financial analysis of the Borrower, together with respect a written statement from such accountants to the consolidated financial statementseffect that they have read a copy of this Agreement, Certified by and that, in making the Accountantsexamination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Agent or the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 days after the end of each fiscal quarter of the BorrowersBorrower (including the fourth fiscal quarter in each year), copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related statement unaudited consolidated statements of income, changes in capital and cash flowsflows for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each Borrower (the "CFO") General Partner that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) contemporaneously with the delivery of the financial statements referred to in clause (a) above, a statement of all contingent liabilities of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guarantees, endorsements and other contingent obligations in respect of indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement in the form of EXHIBIT D hereto (the a "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as principal financial or accounting officer of the end General Partner in the form of the applicable period and Exhibit C hereto setting forth in reasonable detail computations evidencing such compliancecompliance with the covenants contained in Section 9 and the other covenants described therein, PROVIDED THAT and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) contemporaneously withsimultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above and the Compliance Certificate referred to in subsection (d) above, or promptly followinga spreadsheet listing each parcel of Real Estate and its location, date of acquisition, size (square footage for office and retail assets; number of rooms for hotel/resort assets; and number of beds for behavioral healthcare facilities), occupancy level for the quarter most recently ended, cost (appraised value if acquired prior to October, 1995), rolling four quarter Net Income (actual lease payments received by the Borrower for hotel/resort assets and behavioral healthcare facilities) and for office building assets, the filing major tenants and percentage of gross leasable area occupied;
(f) not later than 60 days following each acquisition of an interest in Real Estate by the Borrower or mailing thereofany of its Subsidiaries (which for the purposes of this Section 7.4(f) shall include the Investments described in Section 8.3(i)), each of the following (provided that with respect to the Investments described in Section 8.3(i), the following items shall be provided to the extent the same are reasonably available to the Borrower or its Subsidiaries): (i) a description of the property acquired, and (ii) a Compliance Certificate prepared using the financial statements of the Borrower most recently provided or required to be provided to the Banks under Section 6.4 or this Section 7.4 adjusted in the best good-faith estimate of the Borrower to give effect to such acquisition and demonstrating that no Default or Event of Default with respect to the covenants referred to therein shall exist after giving effect to such acquisition;
(g) promptly after they are filed with the Internal Revenue Service, copies of all material annual federal income tax returns and amendments thereto of the Borrower, the General Partner and the Limited Partner;
(h) prior to the acquisition by the Borrower of any Real Estate or interest therein costing in excess of $1,000,000.00, a financial nature filed statement of Borrower that no Default or Event of Default exists or would be caused as a result of such acquisition;
(i) not later than five (5) Business Days after the Borrower receives notice of the same from either of the Rating Agencies or otherwise learns of the same, notice of the issuance of any change in the rating by either of the Rating Agencies in respect of any debt of the Borrower (including any change in an Implied Rating), together with the SEC or sent to the stockholders details thereof, and of any announcement by either of the BorrowersRating Agencies that any such rating is "under review" or that any such rating has been placed on a watch list or that any similar action has been taken by either of the Rating Agencies (collectively a "Rating Notice");
(j) such financial statements and other information with respect to CBHS as shall be reasonably required by the Agent to test compliance with the covenants contained in Section 9.10; and
(k) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors' management letters, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Crescent Real Estate Equities Co)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGenerally Accepted Accounting Principles, with respect and such consolidated statements to be certified without qualification by PricewaterhouseCoopers LLP or by other independent certified public accountants reasonably satisfactory to the consolidated financial statementsAgent, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPGenerally Accepted Accounting Principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT Exhibit D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in (S)10 and (if applicable) reconciliations to reflect changes in Generally Accepted Accounting Principles since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoBalance Sheet Date;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersBorrower;
(e) within fifteen (15) days after the end of each calendar month or at such earlier time as the Agent may reasonably request, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month or other date so requested by the Agent;
(f) upon the request of the Agent, an Accounts Receivable aging report;
(g) as soon as practicable, but in any event not later than January 31 of each year, annual projections of the Borrower and its Subsidiaries (such projections to include, without limitation, the balance sheet, income statement and cash flow statement of the Borrower and its Subsidiaries on a quarterly basis); and
(h) from time to time such other financial data and information (including accountants, management letters) as the Agent or any Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Varian Semiconductor Equipment Associates Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and certified (such certification to be in form and substance satisfactory to the consolidated financial statementsAgent) by BDO Xxxxxxx, Certified LLP or by other independent certified public accountants satisfactory to the AccountantsAgent, together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to as soon as practicable, but in any event within thirty (a30) and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of days after the end of each month in each fiscal year of the applicable period Borrower, unaudited monthly consolidated financial statements of the Borrower and setting forth its Subsidiaries for such month and unaudited monthly consolidating financial statements of the Borrower and its Subsidiaries for such month, each prepared in reasonable detail computations evidencing such complianceaccordance with generally accepted accounting principles, PROVIDED THAT if together with a certification by the Borrowers shall at principal financial or accounting officer of the time of issuance of such certificate have knowledge of any Default or Event of Default, Borrower that the Borrowers shall include information contained in such certificate or otherwise deliver forthwith to financial statements fairly presents the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies financial condition of the financial statements, financial projections, annual budget, variance reports Borrower and business plan concerning its Subsidiaries on the Borrowers in substantially the same form in which such information is supplied date thereof (subject to the boards of directors of the Borrowersyear-end adjustments);
(e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of the Borrowers; and
Appears in 1 contract
Samples: Revolving Credit Agreement (Silverleaf Resorts Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated and consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and certified without qualification by PricewaterhouseCoopers LLP or by other independent certified public accountants reasonably satisfactory to the Agent, together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default; and simultaneously with the delivery of the financial statements referred to in this subsection (a), a consolidated financial statements, Certified by forecast for the AccountantsBorrower and its Subsidiaries for the then current fiscal year;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit F hereto (the a "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in ss.9 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoBalance Sheet Date;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the Borrowers; andBorrower;
(e) from time to time such other financial data and information (including accountants, management letters) as the Agent or any Bank may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers HBOC and the Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of HBOC, the Borrower and their Subsidiaries and the consolidating balance sheets sheet of HBOC, the Parent Borrower and their Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and certified without qualification by Xxxxxx Xxxxxxxx LLP or by other independent certified public accountants satisfactory to the consolidated financial statementsAgent, Certified by together with a written statement from such accountants to the Accountantseffect that they have read the relevant portions of this Credit Agreement necessary to deliver such statement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default which relate to any issue or matters which, according to generally accepted auditing standards, such accountants would generally examine and issue such a statement, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of HBOC, the Borrower and their Subsidiaries and the unaudited consolidating balance sheets sheet of HBOC, the Borrower and statement of operations of the Parent their Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each HBOC and the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP fairly presents the financial position of HBOC, the Borrower and fairly present the consolidated financial condition of the Borrowers as at the close of business their Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit C hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in Section 10 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoBalance Sheet Date;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersHBOC; and
(e) from time to time such other financial data and information (including accountants, management letters) as the Agent or any Bank may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicable, but, available and in any event not later than 90 within ninety (90) days after the end of each fiscal year of the Parentcalendar year, the a consolidated and consolidating balance sheets sheet of the Parent and its Subsidiaries as at of the end of such year, statements of cash flows, year and the related consolidated and consolidating statements of operationsincome, each shareholders’ equity and cash flows for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized standing, with such consolidated and consolidating financial statements certification to be in reasonable detail, prepared in accordance with GAAP and, with respect free of exceptions and qualifications not acceptable to the consolidated financial statements, Certified by the AccountantsRequired Lenders;
(b) as soon as practicable, but available and in any event not later than 45 within forty-five (45) days after the end of each fiscal quarter of the Borrowersfour calendar quarters of each year, copies a consolidated balance sheet of the consolidated Parent and consolidating balance sheets its Subsidiaries as of the end of such quarter and the related statement of income and statement of operations cash flows for such quarter and for the portion of the Parent as year ended at the end of such quarter, subject to year end adjustments, setting forth in each case in comparative form the related statement figures for the corresponding quarter and the corresponding portion of cash flowsthe previous year, all in reasonable detail and prepared in accordance with GAAP, with a certification by the principal financial or accounting officer of each Borrower (the "CFO") that the consolidated financial statements are prepared in accordance with GAAP and fairly present the consolidated financial condition of the Borrowers as at the close of business on the date thereof certified (subject to normal year-end adjustments) as to fairness of presentation, GAAP and consistency by the results chief financial officer, chief accounting officer or treasurer of operations for the period then endedParent;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and and, other than the financial statements delivered for the last calendar quarter of the calendar year, (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer or chief accounting officer of Parent in the form of EXHIBIT D Exhibit F hereto (or in such other form as the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance Agent may approve from time to time). Calculations of income, expense and value associated with Real Estate or other Investments acquired or disposed of during any quarter will be adjusted, where applicable. Parent shall submit with the covenants contained Compliance Certificate a Unencumbered Asset Certificate in ss.ss.7, 8 and 9 hereof, the form of Exhibit E hereto (a “Unencumbered Asset Certificate”) pursuant to which Parent shall calculate the amount of the Unencumbered Asset Availability as of the end of the applicable period immediately preceding fiscal quarter, list the Subject Properties and setting forth certify that each Subject Property included therein and in reasonable detail computations evidencing the calculation of the Unencumbered Asset Availability satisfies all of the requirements contained in this Agreement for the same to be included therein. The Compliance Certificate shall be accompanied by copies of the statements of Consolidated Net Operating Income for such compliancefiscal quarter for each of the Subject Properties, PROVIDED THAT if prepared on a basis consistent with the Borrowers shall at statements furnished to the time Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer, chief accounting officer or treasurer of issuance of such certificate have knowledge of any Default or Event of Default, Parent that the Borrowers shall include information contained in such certificate or otherwise deliver forthwith to statement fairly presents in all material respects the Lenders Consolidated Net Operating Income for such periods. Such Unencumbered Asset Certificate shall specify whether there are any defaults under leases at a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoSubject Property;
(d) annually or at such other time as may be reasonably requested by simultaneously with the Administrative Agent, copies delivery of the financial statements referred to in subsections (a) and, other than the financial statements delivered for the last calendar quarter of the calendar year, (b) above, (i) a Rent Roll for each of the Subject Properties, and a combined Rent Roll for all of the Subject Properties and a summary thereof in form satisfactory to Agent as of the end of each calendar quarter (including the fourth calendar quarter in each year) and (ii) an operating statement for each of the Subject Properties for each such quarter and year to date, a consolidated operating statement for the Subject Properties for each such quarter and year to date, and a balance sheet for the Subsidiary Guarantor which owns or leases any Subject Property as at the end of the most recently ended calendar quarter (such statements, balance sheets and reports to be in form reasonably satisfactory to Agent), together with a certification by the chief financial projectionsofficer, annual budgetchief accounting officer or treasurer of Parent that the information contained therein is true, variance reports correct and business plan concerning the Borrowers complete in substantially the same form in which such information is supplied to the boards of directors of the Borrowersall material respects;
(e) contemporaneously with, or promptly following, upon the filing or mailing thereofrequest of the Agent, copies of all material of a financial nature filed with the SEC statements, reports or proxy statements sent to the stockholders shareholders of Parent;
(f) upon the request of the BorrowersAgent, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent) and annual, quarterly, monthly or special (8-K) reports which Parent or Borrower shall file with the SEC; provided that, in the case of annual and quarterly reports on Forms 10-K and 10-Q, respectively, such reports shall be deemed to be delivered hereunder if posted on the Parent’s website;
(g) any notice received by the Borrower or any Guarantor of any pending, threatened or contemplated eminent domain proceedings against (i) any of the Subject Properties or (ii) any other Real Estate which may, in the case of this clause (ii), individually or in the aggregate have any Material Adverse Effect; and
(h) from time to time such other financial data and information in the possession of the Borrower, each Guarantor or their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower and any settlement discussions relating thereto, and information as to legal and regulatory changes affecting the Borrower or any Guarantor) as the Agent or any Lender may reasonably request. Any material to be delivered pursuant to this §7.4 may be delivered electronically directly to Agent and the Lenders provided that such material is in a format reasonably acceptable to Agent, and such material shall be deemed to have been delivered to Agent and the Lenders upon Agent’s receipt thereof. Upon the request of Agent, Borrower and Parent shall deliver paper copies thereof to Agent and the Lenders. Borrower and Parent authorize Agent and Arranger to disseminate any such materials through the use of Intralinks, SyndTrak or any other electronic information dissemination system, and the Borrower and Parent release Agent and the Lenders from any liability in connection therewith.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers will shall deliver to the LendersBanks:
(a) as soon as practicable, but in any event not later than fifty (50) days after the end of each fiscal quarter of the Borrowers, copies of the consolidated balance sheet and statement of income of the Borrowers (excluding that portion of the Parent's assets, liabilities, income and expenses attributable to non-Borrowers) as at the end of such quarter, subject to year end adjustments, and the related statement of cash flows, all in reasonable detail and prepared in accordance with GAAP, with a certification by the principal financial or accounting officer of the Parent (the "CFO") that these consolidated financial statements are prepared in accordance with GAAP and fairly present the consolidated financial condition of the Borrowers as at the close of business on the date thereof and the results of operations for the period then ended;
(b) as soon as practicable, but in any event not later than fifty (50) days after the end of each fiscal quarter of the Parent, copies of the consolidated balance sheet and statement of income of the Parent as at the end of such quarter, subject to year end adjustments, and the related statement of cash flows, all in reasonable detail and prepared in accordance with GAAP, with a certification by the CFO that these consolidated financial statements are prepared in accordance with GAAP and fairly present the consolidated financial condition of the Parent as at the close of business on the date thereof and the results of operations for the period then ended;
(c) as soon as practicable, but, in any event not later than 90 one hundred (100) days after the end of each fiscal year of the Parent, the consolidated and consolidating balance sheets of the Parent as at the end of such year, statements of cash flows, and the related consolidated and consolidating statements of operationsincome, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP and, with respect to the consolidated financial statements, Certified certified by Coopers & Xxxxxxx L.L.P. or another independent accounting firm of national standing acceptable to the Agent (the "Accountants") and including a reconciliation of the consolidated financial statements of the Borrowers (excluding that portion of the Parent's assets, liabilities, income and expenses attributable to non-Borrowers) to the consolidated financial statements of the Parent. In addition, simultaneously therewith, the Borrowers shall use their reasonable best efforts to provide the Banks with a written statement from such Accountants to the effect that the Borrowers are in compliance with the covenants set forth in ss.8 hereof, and that, in making the examination necessary to said certification, nothing has come to the attention of such Accountants that would indicate that any Default or Event of Default exists, or, if such Accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided, that such Accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(bd) as soon as practicable, but in any event not later than 45 thirty (30) days after the end of each fiscal quarter of the Borrowers, copies of the consolidated and consolidating balance sheets and statement of operations Accounts Receivable aging reports of the Parent as at Borrowers and the end of consolidated liquidity calculation for such quarter, subject to year end adjustments, the related statement of cash flowsdate required under ss.8.4 hereof, all in reasonable detail and prepared in accordance with GAAP, with a certification by the principal financial or accounting officer of each Borrower (the "CFO") CFO that the consolidated financial statements these reports and calculation are prepared in accordance with GAAP and fairly present the consolidated financial condition Accounts Receivable of the Borrowers as at the close of business on the date thereof (subject to year-end adjustments) and the results of operations for the period then endedthereof;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of the Borrowers; and
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers will deliver to the LendersLender:
(a) as soon as practicable, but, in any event not later than 90 95 days after the end of each fiscal year of the ParentBorrowers, the consolidated and consolidating balance sheets of the Parent Borrowers as at the end of such year, statements of cash flows, and the related consolidated and consolidating statements of operations, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated and consolidating financial statements to be in reasonable detail, prepared prepared, in accordance with GAAP and, with respect to the consolidated financial statements, Certified certified by the Accountants. In addition, simultaneously therewith, the Borrowers shall use their best efforts to provide the Lender with a written statement from such Accountants to the effect that the Borrowers are in compliance with the covenants set forth in ss.8 hereof, and that, in making the examination necessary to said certification, nothing has come to the attention of such Accountants that would indicate that any Default or Event of Default exists, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; PROVIDED THAT such Accountants shall not be liable to the Lender for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 days after the end of each fiscal quarter of the BorrowersBorrowers commencing with the fiscal quarter ending September 30, 1997, copies of the consolidated and consolidating balance sheets and statement of operations of the Parent Borrowers as at the end of such quarter, subject to year end adjustments, and the related statement of cash flows, all in reasonable detail and prepared in accordance with GAAP, GAAP with a certification by the principal financial or accounting officer of each Borrower the Borrowers (the "CFO") that the consolidated financial statements are prepared in accordance with GAAP and fairly present the consolidated financial condition of the Borrowers as at the close of business on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended, subject to year-end adjustments in accordance with GAAP;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, (i) a statement in the form of EXHIBIT D C hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7ss.ss.6, 7 and 8 and 9 hereof, hereof as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliancecompliance with ss.ss.7.1, 7.3, 7.8, and 8 hereof, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have or at any other time obtain knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders Lender a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
, and (dii) annually or at such other time as may be reasonably requested by a certificate in the Administrative Agent, copies form of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied EXHIBIT D hereto with respect to the boards of directors operating permits of the Borrowers;
(ed) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersParent; and
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers will deliver to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 one hundred twenty (120) days after the end of each fiscal year of the Parenteach Borrower, the audited consolidated balance sheet of each Borrower and consolidating balance sheets its subsidiaries and of the Parent as Borrowers collectively and their subsidiaries on a combined basis at the end of such year, statements of cash flows, and the related audited consolidated and consolidating statements of operationsincome, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGenerally Accepted Accounting Principles, with respect and accompanied by an auditor’s report prepared without qualification by a nationally recognized accounting firm reasonably acceptable to the consolidated Agent, and any other information the Agent may reasonably require to complete a financial statementsanalysis of the Borrowers, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Agent or the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the BorrowersBorrowers (including the fourth fiscal quarter in each year), copies of the unaudited consolidated balance sheet of each Borrower and consolidating balance sheets its Consolidated subsidiaries and statement of operations of the Parent Borrowers collectively and their Consolidated subsidiaries on a combined basis as at of the end of such quarter, subject to year end adjustments, and the related statement unaudited consolidated statements of income, changes in capital and cash flowsflows for the portion of the Borrowers’ fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPGenerally Accepted Accounting Principles (other than the inclusion of footnotes) and in addition a calculation of Operating Cash Flow, Excess Cash Flow, Total Debt Ratio, Hotel Net Operating Income and Net Operating Income for all Properties Under Construction or otherwise subject to §8.9, Woodlands Operating Payments, Woodlands Operating Distributions, Net Income of Woodlands Operating and the Distributions to be made to the parties or other beneficial owners of the Borrowers for such period (or if such amounts relate to a prior period as permitted by §8.7(i)) and any other terms defined in this Agreement, and showing any variations for such quarter and the year-to-date of actual operations from the Budget, together with a certification by the principal financial or accounting officer Principal Financial Officer of each Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business and their respective Consolidated subsidiaries on the date thereof (subject to year-year end adjustments) and the results of operations for the period then ended);
(c) contemporaneously with the delivery of the financial statements referred to in clause (a) above, a statement of all contingent liabilities in excess of $100,000.00 of each Borrower and their respective Restricted Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guarantees, endorsements and other contingent obligations in respect of indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(d) [Intentionally omitted].
(e) not later than sixty (60) days after the end of the first three fiscal quarters of the Borrowers and not later than one hundred twenty (120) days after the end of each fiscal year of the Borrowers, a statement (a “Compliance Certificate”) certified by the Principal Financial Officer of each Borrower in the form of Exhibit E hereto setting forth in reasonable detail computations evidencing compliance with the covenants contained in §9 and the other covenants described therein, and (if applicable) reconciliations to reflect changes in Generally Accepted Accounting Principles since the Balance Sheet Date;
(f) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above and the Compliance Certificate referred to in subsection (e) above, a statement in the form spreadsheet listing each parcel of EXHIBIT D hereto income-producing Real Estate and its location, whether such Real Estate is owned by a Borrower or one of their respective Restricted Subsidiaries, its size (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7square footage for office and retail assets; number of apartments for multifamily; number of rooms for hotel/lodging/resort assets), 8 and 9 hereof, occupancy level as of the end quarter most recently ended, current quarter net income and partnership distributions and such other information as Agent may reasonably request, a specific listing of any new Eligible Accounts Receivable proposed to be included in the Borrowing Base, a listing of each Vertical Commercial Improvements project under construction or development, the budgeted cost of completing such project (on a fully developed basis including land) of Commercial Company, Land Company and their respective Restricted Subsidiaries and Unrestricted Subsidiaries, the amount expended and the remaining costs to be incurred, whether each such project constitutes a Speculative Development, the status of completion, the estimated completion date, the status of leasing and the summary and breakdown of the applicable period sources of capital for such construction and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretodevelopment;
(dg) annually not later than five (5) days after the end of each calendar month, a statement certified by an Authorized Officer of each Borrower that each sale of Undeveloped Residential Land or at Developed Residential Land for the preceding calendar month was for fair market value as a result of an arm’s-length sale of such other time as may be reasonably Property in the ordinary course of such Borrower’s business to a party that was not an Affiliate of any Borrower, any General Partner, any Second Tier Partner, any Third Tier Partner or any Guarantor, and that any easements, subdivision plats, road dedications, restrictions or similar agreements consented or subordinated to by the Title Insurance Company pursuant to the Tri-Party Agreement during the preceding calendar month shall not have any material negative impact to the Collateral;
(h) if requested by the Administrative Agent, copies of the financial statements, financial projections, all annual budget, variance reports federal income tax returns and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors amendments thereto of the Borrowers;
(ei) contemporaneously with[Intentionally omitted];
(j) not later than forty-five (45) days after the end of each fiscal quarter of the Borrowers (including the fourth fiscal quarter in each year), or promptly followinga statement, certified as true and correct by the Principal Financial Officer of each Borrower, of all recourse and Non-Recourse Indebtedness of each Borrower and their respective Restricted Subsidiaries as of the end of such fiscal quarter, including, with respect to each such Indebtedness, the filing outstanding principal amount as of the end of such fiscal quarter, the amount remaining undisbursed, if any, the maturity date and any extension options, the required monthly payments of principal and interest, the identity of the lender, the interest rate, the collateral for such Indebtedness and whether such Indebtedness is recourse or mailing thereofnon-recourse;
(k) not later than ten (10) days after approval by each Borrower’s executive committee, copies of all material of a financial nature filed with the SEC or sent Budget for the next calendar year. Such Budget shall be in form reasonably satisfactory to the stockholders Agent and shall be submitted to the Agent together with a narrative description of the assumptions upon which the Budget is based and such other information as the Agent may request;
(l) at such times as Agent shall determine in its discretion (but, so long as no Event of Default has occurred and is continuing, not more frequently than once each calendar year), Borrower shall deliver to Agent such title updates, UCC searches or other evidence as Agent may reasonably require to show that the Security Documents create a first lien and security interest in the Collateral; and
(m) from time to time such other financial data and information in the possession of the Borrowers; and, their respective Restricted Subsidiaries or their respective Unrestricted Subsidiaries (including without limitation auditors’ management letters, market comparable studies, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrowers or their respective Subsidiaries) as the Agent may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but, in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated and consolidating audited balance sheets of the Parent as Borrower and of the Company at the end of such year, and the related audited statements of operations and statements of cash flows, flows and the related consolidated and consolidating statements of operationsFunds From Operations for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGenerally Accepted Accounting Principles on a consolidated basis including the Borrower and the Related Companies, with respect and accompanied by an auditor’s report prepared by Ernst & Young LLP or by another independent certified public accountant reasonably acceptable to the consolidated financial statements, Certified by Agent and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the Accountantsscope of such audit;
(b) not later than forty-five (45) days after the end of each of the first three (3) fiscal quarters of the Borrower, copies of the unaudited balance sheets of the Borrower and of the Company as at the end of such quarter, and the related unaudited statements of operations and statements of Funds From Operations for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with Generally Accepted Accounting Principles on a consolidated basis including the Borrower and the Related Companies, together with a certification by the principal financial or accounting officer of the Company that the information contained in such financial statements fairly presents the financial position of the Borrower and of the Company on the date thereof (subject to year-end adjustments);
(c) not later than forty-five (45) days after the end of each of the first three (3) fiscal quarters and not later than ninety (90) days after the end of the last fiscal quarter of each fiscal year of the Borrower, (i) copies of a statement of the aggregate Net Operating Income for such fiscal quarter for the Unencumbered Properties and a listing of such properties, prepared on a basis consistent with the statements furnished pursuant to §6.4(c), and certified by the Company pursuant to a certificate signed on the Company’s behalf by a Responsible Officer of the Company and, (ii) at the time of the annual financial statements referred to in subsection (a) above, and, if requested by the Agent, at the time of quarterly financial statements referred to in paragraph (b) above, a statement setting forth the Net Operating Income for such fiscal quarter for each Unencumbered Property listed by address;
(d) simultaneously with the delivery of the financial statements referred to in paragraphs (a) and (b) above, a Compliance Certificate in the form of Exhibit C hereto signed on the Company’s behalf by a Responsible Officer of the Company and setting forth in reasonable detail computations evidencing compliance with the covenants contained herein (including §§9.1 through 9.6) and, to the extent required pursuant to §1.2(f), reconciliations to reflect changes in Generally Accepted Accounting Principles since the Balance Sheet Date, and including an updated Schedule 6.19, if required under §6.19;
(e) not later than ninety (90) days after the end of each fiscal year of the Company, copies of the Form 10-K statement filed with the Securities and Exchange Commission (“SEC”) for such fiscal year, and as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersquarter, copies of the consolidated and consolidating balance sheets and Form 10-Q statement of operations of the Parent as at the end of such quarter, subject to year end adjustments, the related statement of cash flows, all in reasonable detail and prepared in accordance with GAAP, with a certification by the principal financial or accounting officer of each Borrower (the "CFO") that the consolidated financial statements are prepared in accordance with GAAP and fairly present the consolidated financial condition of the Borrowers as at the close of business on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC for such fiscal quarter, provided that in either case if the SEC has granted an extension for the filing of such statements, the Borrower shall deliver such statements to the Agent simultaneously with the filing thereof with the SEC;
(f) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the BorrowersBorrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Agent pursuant hereto;
(g) promptly, and in any event within five (5) Business Days after receipt thereof by any Related Company 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 material investigation or possible material investigation or other inquiry by such agency regarding financial or other operational results of any Related Company or any Subsidiary thereof; and
(h) from time to time such other financial data and information as the Agent may reasonably request including, without limitation, financial statements of any Unconsolidated Entities.
(i) the Borrower shall deliver paper copies of such documents to the Agent or any Lender that requests such paper copies until a written request to cease delivering paper copies is given by the Agent or such Lender and (ii) the Borrower shall notify the Agent (by telecopier or electronic mail), which shall notify each Lender, of the posting of any such documents and, upon request, provide to the Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledge that (a) the Agent and/or the Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar or a similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel that 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 so long as the Borrower, the Company or any Guarantor is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (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 Agent, the Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non‑public information with respect to the Borrower, the Company or any Guarantor or their respective 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 Agent and the Arrangers shall treat any Borrower Materials that are not marked “PUBLIC” or that are marked “PRIVATE” as being suitable only for posting on a portion of the Platform not designated “Public Investor.” Notwithstanding the foregoing, neither the Borrower, the Company nor any Guarantor shall be under no obligation to xxxx any Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Credit Agreement (Liberty Property Limited Partnership)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 eighty (80) days after the end of each fiscal year of the Parent, the audited consolidated and consolidating balance sheets sheet of the Parent and its subsidiaries, as at the end of such year, and the related audited consolidated statements of income and audited consolidated statements of cash flows, and the related consolidated and consolidating statements of operationsflow, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements (i) to be in reasonable detail, prepared in accordance with GAAP and, with respect and the requirements of the Securities and Exchange Commission (the “SEC”) and (ii) to be certified without qualification and without an expression of uncertainty as to the consolidated financial statementsability of the Parent, Certified the Borrower or any of the Subsidiaries to continue as going concerns, by Ernst & Young LLP or by other independent certified public accountants reasonably satisfactory to the AccountantsAdministrative Agent, together with a written statement from such accountants to the effect that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default related to or arising from accounting matters, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(bi) as soon as practicable, but in any event not later than 45 fifty (50) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Parent, copies of the unaudited consolidated and consolidating balance sheets and statement of operations of the Parent and its subsidiaries as at the end of such quarter, and the related consolidated statements of income and cash flows for the fiscal quarter then ended, all in reasonable detail and prepared in accordance with GAAP and SEC requirements, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial position of the Parent, the Borrower and their respective subsidiaries on the date thereof (subject to year year-end adjustments);
(ii) during the Suspension Period, as soon as practicable, but in any event not later than thirty (30) days after the end of each month, copies of the unaudited consolidated balance sheets of the Parent and its subsidiaries as at the end of such month, and the related statement consolidated statements of cash flowsincome for the fiscal month then ended, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at Parent, the close of business Borrower and their respective subsidiaries on the date thereof (subject to year-end and quarter-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (bb)(i) above, (i) a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit E hereto or any other form acceptable to the Administrative Agent (the "a “Compliance Certificate"”) certified by and certifying that no Default or Event of Default is then continuing or describing the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 nature and 9 hereof, as duration of the end any then continuing Default or Event of the applicable period Default and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §11 and (if applicable) reconciliations to reflect changes in GAAP since the Balance Sheet Date, (ii) a schedule in form and detail reasonably satisfactory to the Administrative Agent of computations of (x) Consolidated Net Income (along with a schedule that reconciles the net income (or loss) of the Parent and its subsidiaries on a consolidated basis to the net income (or loss) of the Borrower and its Subsidiaries on a consolidated basis) and (y) Consolidated EBITDA and other financial covenant-related calculations detailing the adjustments made to exclude Excluded Subsidiaries from such compliancecomputations, PROVIDED THAT if in each case, prepared by the Borrowers shall at principal financial or accounting officer of the time Borrower, (iii) during the Suspension Period, a schedule in form and detail reasonably satisfactory to the Administrative Agent of issuance the amount of cash and cash equivalents as of the end of such certificate have knowledge fiscal quarter in each of any Default or Event of Defaultthe Parent’s, the Borrowers shall include Borrower’s and each of the Subsidiary’s deposit accounts and securities accounts, (iv) during the Suspension Period, a schedule in such certificate or otherwise deliver forthwith form and detail reasonably satisfactory to the Lenders Administrative Agent tracking and detailing the existing Investments made pursuant to the terms of §10.3(j) and the replenishment in accordance with the terms of the definition of Investment and (v) during the Suspension Period, a certificate specifying schedule in form and detail reasonably satisfactory to the nature Administrative Agent tracking and period detailing the Distributions of existence thereof the Borrower made to the Parent and what action the Borrowers propose to take with respect theretoreasons therefor;
(d) annually or at such other time as may be reasonably requested by promptly upon completion thereof and in any event no later than eighty (80) days after the Administrative Agent, copies beginning of each fiscal year of the Borrower, the Borrower’s annual operating budget in the form of consolidated financial statementsprojections for such fiscal year and prepared on a quarterly basis and setting forth projected operating results for each quarter in such fiscal year and for the fiscal year as a whole, financial projectionsincluding projections of operating cash flow together with a quarterly itemization of estimated taxes and Capital Expenditures for such fiscal year, annual budget, variance reports and business plan concerning which are prepared on the Borrowers in substantially the same form in which such information is supplied to the boards basis of directors of the Borrowers;reasonable assumptions; and
(e) contemporaneously withfrom time to time such other financial data and information (including, without limitation, accountants’ management letters) with respect to the condition or promptly followingoperations, financial or otherwise, of the Parent, the filing Borrower and the subsidiaries (including Excluded Subsidiaries) as the Administrative Agent or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of the Borrowers; andany Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
Financial Statements, Certificates and Information. The Borrowers Borrower will -------------------------------------------------- deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries, the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income, and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, and such consolidated statements are reported upon without qualification by a nationally recognized independent certified public accounting firm that is currently known as a "Big Six" accounting firm or by other independent certified public accountants of nationally recognized standing, together with respect a written statement from such accountants to the consolidated financial statementseffect that they have read a copy of (S)13 of this Credit Agreement in connection with their audit of the Borrower and its Subsidiaries, Certified by and that, in making the Accountantsexamination necessary to said certification, they have obtained no knowledge of any Default or Event of Default under (S)13 of the Credit Agreement, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default under (S)13 of the Credit Agreement they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to -------- obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income, consolidated statement of cash flowsflow, consolidating statement of income, and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail detail, showing operating contribution on a Stopping Center by Stopping Center basis and the comparison of the Borrower's performance for such period to the Borrower's projected budget for such period, and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit C hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are and setting forth in ------- - reasonable detail computations evidencing compliance with the covenants contained in ss.ss.7, 8 (S)13 and 9 hereof, as of (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoBalance Sheet Date;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission;
(e) not later than January 31 of each year, or sent such later time as agreed to by the stockholders Agent, budgets of the BorrowersBorrower and its Subsidiaries for such year;
(f) from time to time such other financial data and information as the Agent or any Bank may reasonably request; and
(g) as soon as practicable, but in any event not later than forty-five days after April 30, 1997, a Compliance Certificate setting forth in reasonable detail computations evidence compliance with the covenant contained in (S)13.6.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Petro Stopping Centers L P)
Financial Statements, Certificates and Information. The Borrowers will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicablewithin five (5) days of the filing of REIT’s Form 10-K with the SEC, butif applicable, but in any event not later than 90 one hundred twenty (120) days after the end of each fiscal year calendar year, the audited Consolidated balance sheet of the Parent, the consolidated REIT and consolidating balance sheets of the Parent as its Subsidiaries at the end of such year, statements of cash flows, and the related audited consolidated and consolidating statements of operationsincome, each changes in capital and cash flows for such year, setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, together with respect a certification by an Authorized Officer or the chief financial officer or accounting officer of the REIT that the information contained in such financial statements fairly presents in all material respects the financial position of the REIT and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the consolidated financial statements, Certified scope of the audit by a member firm of KPMG International Cooperative or another nationally recognized accounting firm reasonably approved by the AccountantsAgent;
(b) as soon as practicablewithin five (5) days of the filing of REIT’s Form 10-Q with the SEC, if applicable, but in any event not later than 45 sixty (60) days after the end of each fiscal calendar quarter of the Borrowerseach year, copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent REIT and its Subsidiaries, as at the end of such quarter, subject to year end adjustments, and the related statement unaudited consolidated statements of income and cash flowsflows for the portion of the REIT’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by an Authorized Officer or the principal chief financial officer or accounting officer of each Borrower (the "CFO") REIT that the consolidated information contained in such financial statements are prepared fairly presents in accordance with GAAP and fairly present all material respects the consolidated financial condition position of the Borrowers as at the close of business REIT and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by an Authorized Officer or the chief financial officer or chief accounting officer of REIT in the form of EXHIBIT D Exhibit E hereto (or in such other form as the "Compliance Certificate"Agent may approve from time to time) certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in § 9 setting forth reconciliations to reflect changes in GAAP since the Balance Sheet Date, with the Compliance Certificate for the quarter ending September 30, 2013 being prepared by the REIT on a good faith estimated basis. REIT shall submit with the Compliance Certificate an Unencumbered Asset Pool Certificate in the form of Exhibit D attached hereto pursuant to which the REIT shall calculate the amount of the Unencumbered Asset Pool Availability as of the end of the immediately preceding calendar quarter. All income, expense and value associated with Real Estate or other Investments disposed of during any quarter will be eliminated from calculations, where applicable. The Compliance Certificate shall be accompanied by copies of the statements of Net Operating Income for such compliancecalendar quarter for each of the Eligible Real Estate Assets, PROVIDED THAT if prepared on a basis consistent with the Borrowers shall at statements furnished to the time Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by an Authorized Officer or the chief financial officer or chief accounting officer of issuance of such certificate have knowledge of any Default or Event of Default, REIT that the Borrowers shall include information contained in such certificate or otherwise deliver forthwith to statement fairly presents in all material respects Net Operating Income of the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoEligible Real Estate Assets for such periods;
(d) annually or at such other time as may be reasonably requested by simultaneously with the Administrative Agent, copies delivery of the financial statementsstatements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $10,000,000 or more of Borrowers and their Subsidiaries which are not reflected in such financial projectionsstatements or referred to in the notes thereto (including, annual budgetwithout limitation, variance reports all guaranties, endorsements and business plan concerning the Borrowers other contingent obligations in substantially the same form in which such information is supplied to the boards of directors respect of the Borrowersindebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, (i) a Rent Roll for each of the Eligible Real Estate Assets and a summary thereof in form reasonably satisfactory to the Agent as of the end of each calendar quarter (including the fourth calendar quarter in each year), together with a listing of each tenant that has taken occupancy of such Eligible Real Estate Asset during each calendar quarter (including the fourth calendar quarter in each year), and (ii) a copy of each material Lease or material amendment to any material Lease entered into with respect to an Eligible Real Estate Asset during such calendar quarter (including the fourth calendar quarter in each year);
(f) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, to the extent not included in public filings by or on behalf of REIT, and upon request by the Agent, a statement (i) listing the material Real Estate owned by Borrowers and their Subsidiaries (or in which Borrowers or their Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, (ii) listing the Indebtedness of Borrowers and their Subsidiaries (excluding Indebtedness of the type described in § 8.1(b)-(e)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non-recourse, and (iii) listing the properties of Borrowers and their Subsidiaries which are Development Properties and providing a brief summary of the status of such development;
(g) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC nature, reports or proxy statements sent to the stockholders owners of Parent Borrower or REIT;
(h) to the extent requested by the Agent, copies of all annual federal income tax returns and amendments thereto of Borrowers;
(i) promptly upon the filing hereof, copies of any registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent) and any annual, quarterly or monthly reports and other statements and reports which Parent Borrower or REIT shall file with the SEC;
(j) to the extent requested by the Agent, evidence reasonably satisfactory to the Agent of the Borrowerstimely payment of all real estate taxes for the Eligible Real Estate Assets;
(k) not later than January 31 of each year, a budget and business plan for Borrowers and their Subsidiaries for such calendar year; and
(l) from time to time such other financial data and information in the possession of Borrowers or their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against Borrowers and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting Borrowers) as the Agent may reasonably request. Any material to be delivered pursuant to this § 7.4 may be delivered electronically directly to the Agent and the Lenders provided that such material is in a format reasonably acceptable to the Agent, and such material shall be deemed to have been delivered to the Agent and the Lenders upon the Agent’s receipt thereof. Upon the request of the Agent, Borrowers shall deliver paper copies thereof to the Agent and the Lenders. Borrowers authorize the Agent and Arrangers to disseminate any such materials through the use of Intralinks, SyndTrak or any other electronic information dissemination system, and Borrowers release the Agent and the Lenders from any liability in connection therewith.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers REA will deliver or cause to be delivered to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentREA, the consolidated and consolidating audited balance sheets sheet of the Parent as REA at the end of such yearyear (both on a consolidated basis with the Borrower and their respective Subsidiaries and on an unconsolidated basis), and, if requested, the related audited statements of income, changes in capital and cash flowsflows for such year (both on a consolidated basis with the Borrower and their respective Subsidiaries and if requested by the Agent, and the related consolidated and consolidating statements of operationson an unconsolidated basis), each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, with respect and accompanied by an auditor's report prepared without qualification as to the consolidated scope of the audit by a "Big Six" accounting firm, and any other information the Lenders may need to complete a financial statementsanalysis of REA, Certified by the AccountantsBorrower and their respective Subsidiaries, in any event together with a written statement from such accountants to the effect that they have read this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any Default or Event of Default they shall disclose in such statement any such Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty five (45) days after the end of each fiscal quarter of the Borrowersfirst three fiscal quarters of REA, copies of the consolidated and consolidating unaudited balance sheets and statement sheet of operations of the Parent REA as at the end of such quarterquarter (both on a consolidated basis with the Borrower and their respective Subsidiaries and if requested by the Agent, subject to year end adjustmentson an unconsolidated basis), and the related unaudited statements of income, changes in capital and cash flows for the portion of REA's fiscal year then elapsed (both on a consolidated basis with the Borrower and their respective Subsidiaries and if requested by the Agent, on an unconsolidated basis), and a statement showing the aging of cash flowsthe receivables for the Mortgaged Properties, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal chief financial officer or accounting officer of each Borrower (the "CFO") REA that the consolidated information contained in such financial statements are prepared in accordance with GAAP fairly presents the financial position of REA the Borrower and fairly present the consolidated financial condition of the Borrowers as at the close of business their respective Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement in the form of EXHIBIT D hereto (the a "Compliance Certificate") certified by the CFO that chief financial officer or chief accounting officer of REA in the Borrowers are form of EXHIBIT H hereto (or in compliance with such other form as the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and Agent may approve from time to time) setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if compliance with the Borrowers shall at covenants contained in Section 9 and the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include other covenants described in such certificate or otherwise deliver forthwith and (if applicable) setting forth reconciliations to reflect changes in GAAP since the Balance Sheet Date. The Compliance Certificate shall be accompanied by copies of the statements of Consolidated Operating Cash Flow for each such fiscal quarter and the preceding fiscal quarters for REA and a statement of Gross Cash Receipts, Operating Expenses and Net Operating Income for each such fiscal quarter and the preceding fiscal quarter for each of the Mortgaged Properties, prepared on a basis consistent with the statements furnished to the Lenders prior to the date hereof and otherwise in form and substance satisfactory to the Agent, together with a certificate specifying certification by the nature chief financial officer or chief accounting officer of REA that the information contained in such statement fairly presents the Consolidated Operating Cash Flow, Net Operating Income, Gross Cash Receipts and period Operating Expenses of existence thereof REA and what action the Borrowers propose to take with respect theretoMortgaged Properties, as applicable, for such periods;
(d) annually or at as soon as practicable but in any event not later than forty five (45) days after the end of each fiscal quarter of REA (including the fourth fiscal quarter in each year), an updated Rent Roll with respect to each Mortgaged Property, a summary of each such other time as may be reasonably requested by Rent Roll, and a leasing activity report with respect to each Mortgaged Property setting forth the Administrative Agent, copies efforts to market and lease the then unleased space in each Mortgaged Property and the results of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowersefforts;
(e) simultaneously with the delivery of the financial statement referred to in subsection (a) above, the business plan of REA for the current fiscal year and a statement (i) listing the Real Estate owned or leased by REA, the Borrower, the Guarantors and their respective Subsidiaries and stating the location thereof, the date acquired and the acquisition cost thereof, (ii) listing the Indebtedness of REA, the Borrower, the Guarantors and their respective Subsidiaries (excluding Indebtedness of the type described in Section 8.1(b)-(e)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non-recourse, (iii) listing the Real Estate, if any, owned or leased by REA, the Borrower, the Guarantors and their respective Subsidiaries which is Under Development and providing a brief summary of the status of such development and (iv) listing any new Subsidiaries of the Borrower, REA or any Guarantor and the ownership thereof, and any change of ownership of any existing Subsidiaries;
(f) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature sent to the partners of the Borrower or the partners or shareholders of REA or any Guarantor;
(g) promptly after they are filed with the SEC Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the Borrower, REA and each Guarantor;
(h) promptly following the end of each fiscal quarter of REA, evidence of all Swap Agreements entered into and still open by Borrower, REA, the Guarantors and/or their respective Subsidiaries; and
(i) from time to time such other financial data and information in the possession of the Borrower, REA, each Guarantor or sent their respective Subsidiaries (including without limitation auditors' management letters, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower, REA or any Guarantor) as the Agent may reasonably request. Notwithstanding anything to the stockholders contrary set forth in this Agreement, during any period of time that the percentage partnership interest of REA in the Borrower falls below the ownership threshold which, in accordance with GAAP, would permit the consolidation of the Borrowersaccounts of the Borrower with the accounts of REA:
(i) pursuant to Section 7.4(a), REA shall cause to be prepared and delivered the audited balance sheet and financial statements of REA and the Borrower which are described therein on an unconsolidated basis, together with an agreed upon procedures report from the accountants who are preparing such balance sheets and financial statements showing the consolidation of such balance sheets and financial statements as if such consolidation were permitted by GAAP and otherwise in form acceptable to the Agent and, if requested by the Agent, an audited balance sheet and financial statement of the Borrower consolidated in accordance with GAAP;
(ii) pursuant to Section 7.4(b), REA shall prepare and deliver the unaudited balance sheets and financial statements of REA and the Borrower which are described therein on a consolidated basis (whether or not such consolidation is permitted by GAAP) based on consolidation methods and procedures in accordance with GAAP;
(iii) pursuant to Section 7.4(c), REA shall prepare and deliver the Compliance Certificates described therein and calculate compliance with the covenants set forth in Section 9 and the other covenants described in such Compliance Certificates on the basis of the consolidated balance sheets and financial statements of REA and the Borrower which are described in subclauses (i) and (ii) hereof; and
(iv) all other terms and provisions of this Agreement (including defined terms) which depend upon or make reference to the consolidated financial results, balance sheets or financial statements of REA shall be construed to mean such consolidated results, balance sheets or financial statements of REA and the Borrower which are prepared and determined in accordance with subclauses (i), (ii) and (iii) hereof.
Appears in 1 contract
Samples: Revolving Credit Agreement (American Real Estate Investment Corp)
Financial Statements, Certificates and Information. The Borrowers Borrower will -------------------------------------------------- deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and certified without qualification by KPMG Peat Marwick LLP or by another "big five" certified public accountants (including any successors thereto) or by other independent certified public accountants satisfactory to the consolidated financial statementsAgents, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure -------- to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 thirty (30) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of the Borrower, unaudited monthly consolidated financial statements of the Borrower and its Subsidiaries for such month and unaudited monthly consolidating financial statements of the Borrower and its Subsidiaries for such month, each prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial condition of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a), (b) and (bc) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT Exhibit D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period ------- - ---------------------- and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed compliance with the SEC or sent to the stockholders of the Borrowers; andcovenants contained in (S)10 and (if
Appears in 1 contract
Samples: Revolving Credit Agreement (California Steel Industries Inc)
Financial Statements, Certificates and Information. The Borrowers will deliver to the LendersAdministrative Agent and the Lenders the following:
(a) as soon as practicable, but, in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrowers, the consolidated and consolidating balance sheets of the Parent and its Subsidiaries as at the end of such year, statements of cash flows, and the related consolidated and consolidating statements of operations, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated and consolidating financial statements to be in reasonable detail, prepared prepared, in accordance with GAAP andand certified by the Accountants, which shall not be subject to any “going concern” or similar qualification or exception (other than any such qualification that is based solely upon the Indebtedness hereunder or under the Second Lien Notes Indenture or the Senior Subordinated Debt becoming current as a result of not having refinanced such Indebtedness prior to the date which is one year before the respective maturity dates thereof, as applicable) or any qualification or exception as to the scope of the Accountants’ audit if such qualification or exception as to scope is based upon or results from any limitations imposed by the Borrowers or any action (or inaction) of the Borrowers with respect to the consolidated applicable audit. In addition, simultaneously therewith, the Borrowers will use their best efforts to provide the Lenders with a written statement from such Accountants to the effect that the Borrowers are in compliance with the financial statementscovenants set forth in Section 7.11 hereof, Certified by and that, in making the Accountantsexamination necessary to said certification, nothing has come to the attention of such Accountants that would indicate that any Default or Event of Default exists, or, if such Accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided, that such Accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowers, copies of the consolidated and consolidating balance sheets and statement of operations of the Parent and its Subsidiaries as at the end of such quarter, subject to year year-end adjustments, and the related statement of cash flows, all in reasonable detail and prepared in accordance with GAAP, GAAP with a certification by the principal financial or accounting officer of each Borrower the Borrowers (the "“CFO"”) that the such consolidated financial statements are were prepared in accordance with GAAP and fairly present the consolidated financial condition of the Borrowers and their Subsidiaries as at the close of business on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") Certificate certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 Article VI and 9 hereof, Article VII of this Agreement as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT provided that, if the Borrowers shall at the time of issuance of such certificate have or at any other time obtain knowledge of any Default or Event of Default, the Borrowers shall will include in such certificate Compliance Certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretothereto and attaching, in the event such Default or Event of Default relates to environmental matters, an Environmental Compliance Certificate;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC (including any copies of notices or other correspondence (other than immaterial notices or correspondence) received from the SEC concerning any investigation or other inquiry regarding financial or other operational results of any Borrower) or sent to the stockholders of the BorrowersParent or any of the Borrowers to the extent the same are not available on XXXXX;
(e) as soon as practicable, but in any event not later than thirty (30) days after the commencement of each fiscal year of the Borrowers and the Non-Borrower Subsidiaries, a copy of the annual budget, projections and business plan for the Borrowers and the Non-Borrower Subsidiaries for such fiscal year;
(f) promptly upon receipt thereof from the Accountants, but in any event within 60 days after the Closing Date, the Audited Financial Statements reissued by the Accountants, which such reissued Audited Financial Statements shall not be subject to any “going concern” or like qualification or exception as to the scope of the Accountants’ audit;
(g) promptly after the furnishing thereof, (i) copies of any documentation furnished to any holder of the Second Lien Notes or to any trustee for their benefit pursuant to the terms of the Second Lien Notes Indenture and not otherwise required to be furnished to the Administrative Agent and the Lenders pursuant to this Section and (ii) copies of any notices furnished by the trustee under the Second Lien Notes to any Borrower pursuant to the Second Lien Notes Indenture and not otherwise required to be furnished to the Administrative Agent and the Lenders pursuant to this Section (including copies of any notices, requests, amendments, waivers or other modifications so given or received under or pursuant to the Second Lien Note Documents regarding any breach or default by any party thereto or regarding any other event that could materially impair the rights of any Borrower or otherwise could have a Material Adverse Effect);
(h) from time to time such other financial data and other information (including accountants’ management letters, audit reports or recommendations regarding internal controls provided by the Accountants to the board of directors of the Parent, or any committee thereof) as the Lenders may reasonably request; and
(i) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, the Borrower shall provide the Administrative Agent with an updated copy of Schedule 5.13(a) hereto or shall certify that Schedule 5.13(a) is true and correct on and as of the date of such delivery. The Borrowers hereby authorize the Lenders to disclose any information obtained pursuant to this Agreement to all appropriate Governmental Authorities where required by Applicable Law; provided, however, that the Lenders shall, to the extent practicable and allowable under Applicable Law, notify the Borrowers within a reasonable period prior to the time any such disclosure is made; and provided further, this authorization shall not be deemed to be a waiver of any rights to object to the disclosure by the Lenders of any such information which any Borrower has or may have under the federal Right to Financial Privacy Act of 1978, as in effect from time to time. Documents required to be delivered pursuant to this Section (to the extent any such documents are included in materials otherwise filed with the SEC and available in XXXXX) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post such documents, or provide a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Borrowers’ behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrowers 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 Borrowers 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 Borrowers shall be required to provide paper copies of the Compliance Certificates required by this Section 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 Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Joint Arrangers will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, the “Borrowers’ Materials”) by posting the Borrowers’ 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 Borrowers or their 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 Person’s securities. The Borrowers hereby agree that they will use commercially reasonable efforts to identify that portion of the Borrowers’ materials that may be distributed to Public Lenders and that (w) all Borrowers’ 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 Borrowers’ Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Joint Arrangers, the L/C Issuer and the Lenders to treat such Borrowers’ Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrowers or their securities for purposes of Securities Laws (including state securities laws) (provided, however, that to the extent such Borrowers’ Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrowers’ 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 Joint Arrangers shall be entitled to treat any Borrowers’ Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Casella Waste Systems Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 105 days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and as to the consolidated financial statements, Certified certified without qualification by Xxxxxx Xxxxxxxx LLP or by other independent certified public accountants satisfactory to the AccountantsAgent, together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 sixty (60) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit C hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 10 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date, together with evidence that the Borrower has met and continues to meet the minimum coverage test for incurring additional Senior Indebtedness (as such compliance, PROVIDED THAT if term is defined in each of the Borrowers shall at Subordinated Indenture and the time Subsequent Subordinated Indenture) set forth in (a) Section 4.3(a) (i) of issuance the Subordinated Indenture and (b) the Subsequent Subordinated Indenture and a certification that no default or event of such certificate have knowledge default has occurred and is continuing under each of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to Subordinated Indenture and the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoSubsequent Subordinated Indenture;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersBorrower;
(e) from time to time upon request of the Agent, projections of the Borrower and its Subsidiaries updating those projections delivered to the Banks and referred to in Section 7.4.2 or, if applicable, updating any later such projections delivered in response to a request pursuant to this Section 8.4(e); and
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and certified (such certification to be in form and substance satisfactory to the consolidated financial statementsAgent) by BDO Xxxxxxx, Certified LLP or by other independent certified public accountants satisfactory to the AccountantsAgent, together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of the Borrower, unaudited monthly consolidated financial statements of the Borrower and its Subsidiaries for such month and unaudited monthly consolidating financial statements of the Borrower and its Subsidiaries for such month, each prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial condition of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as principal financial or accounting officer of the end of Borrower, in form and substance satisfactory to the applicable period Agent, and (i) setting forth in reasonable detail computations evidencing such compliancecompliance with the covenants contained in Section 9 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since December 31, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any 2003, (ii) stating that no Default or Event of DefaultDefault has occurred and (iii) if a Default or Event of Default has occurred and is continuing, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and the period of existence thereof and what the action the Borrowers propose proposed to take be taken with respect thereto;
(de) annually or at such other within five (5) days after the filing thereof, a copy of the Borrower's Form 10-K and 10-Q as filed with the Securities and Exchange Commission;
(i) on the first day of each calendar week, (ii) from time to time as may be reasonably requested by the Administrative Agent, copies (iii) simultaneously with each Loan Request, and (iv) simultaneously with any request for release of any Collateral, a Borrowing Base Certificate substantially in the form of EXHIBIT A, accompanied by summary aging reports and a trial balance of the financial statementsConsumer Loan Collateral, financial projections, annual budget, variance reports and business plan concerning the Borrowers acceptable in substantially the same form in which such information is supplied to the boards of directors of the BorrowersAgent;
(eg) contemporaneously withwithin thirty (30) days after filing, a copy of the federal income tax return for the Borrower and the Association, with all schedules;
(h) within one hundred and twenty (120) days after the close of each fiscal year, annual reports required by each relevant Timeshare Act, or promptly followingsuch other management prepared financial statements of Silverleaf Club containing information concerning each Eligible Project satisfactory to the Agent;
(i) no later than sixty (60) days prior to the start of any fiscal year, the filing Borrower shall submit to the Banks an update to the Business Plan for the upcoming fiscal year in form acceptable to the Agent (each such update to the Business Plan shall be subject to the Agent's approval);
(j) no later than the fifteenth (15th) day of each calendar month, the Borrower shall furnish to the Banks, or mailing thereofcause the Servicer to furnish to the Banks, three (3) copies of all material of a financial nature filed with the SEC or sent report in form and substance acceptable to the stockholders Agent prepared by the Borrower or the Servicer, certified by an Authorized Officer of the BorrowersBorrower, and showing, with respect to each of the loans constituting Consumer Loan Collateral as of the close of business on the last day of the calendar month last ended:
(i) the account number;
(ii) name(s) of consumer borrower(s);
(iii) original principal amount of such consumer loan;
(iv) any payment, including any prepayment, received on account of such consumer loan during the period covered by the statement;
(v) a cash receipts journal;
(vi) the opening and closing principal balance;
(vii) any consumer loans constituting Consumer Loan Collateral cancelled during the period covered by such statement;
(viii) any delinquency of principal and interest payments on a 30-60-90 day basis;
(ix) any delinquency of principal, interest or assessments in excess of ninety (90) days;
(x) the interest rate for each consumer loan and the weighted average consumer interest rate for all Eligible Consumer Loan pledged to the Agent and the outstanding principal amount of Eligible Consumer Loans bearing an interest rate of less than 12.5% and such amount expressed as a percentage of the outstanding principal balance of all Eligible Consumer Loans;
(xi) any extensions, refinances or other adjustments to such consumer loan;
(xii) the outstanding principal balance of Eligible Consumer Loans made to residents of Canada and such amount expressed as a percentage of the outstanding principal balance of all Eligible Consumer Loans;
(xiii) the outstanding principal balance of Eligible Consumer Loans made to consumer borrowers with a FICO Credit Bureau Score of less than 600 (any consumer borrower that does not have a FICO Credit Bureau Score shall be deemed to have a FICO Credit Bureau Score of less than 600) and such amount expressed as a percentage of the outstanding principal balance of all Eligible Consumer Loans;
(xiv) the weighted average of the FICO Credit Bureau Scores of all consumer borrowers under Eligible Consumer Loans;
(xv) the outstanding principal balance of Eligible Consumer Loans described in paragraph (9)(b) of the definition of "Eligible Consumer Loans" and such amount expressed as a percentage of the outstanding principal balance of all Eligible Consumer Loans;
(xvi) the weighted average of the remaining term of the Eligible Consumer Loans; and
(xvii) such other information as the Agent or any Bank may request;
(k) no later than the fifteenth (15th) day of each calendar month, the Borrower shall deliver to the Banks a sales and cancellation report indicating the sales and cancellation activity with respect to each Eligible Project for the preceding calendar month showing such detailed information as the Agent or any Bank may request, including without limitation the following:
(i) a list of the Intervals included in the Inventory Collateral sold during such month, including the Release Price for each such Interval (indicating whether such Release Price was remitted to the Agent), and
(ii) the fair market value of each Interval included in the Inventory Collateral.
(l) no later than the fifteenth (15th) day of each calendar month, the Borrower shall deliver to the Banks an inventory report in form satisfactory to the Agent indicating the number of Timeshare Interests and Intervals sold and unsold at each Eligible Project, identified by Unit and type -52- or color of Timeshare Interest or Interval, and the purchase price of each Interval sold for the preceding calendar month;
(m) no later than the fifteenth (15th) day of each calendar month, the Borrower shall deliver to the Banks a report in form satisfactory to the Agent indicating the performance of each Eligible Consumer Loan pledged as Collateral described in clause (b) of paragraph (9) of the definition of "Eligible Consumer Loan" during the preceding calendar month;
(n) no later than the fifteenth (15th) day of each calendar month, the Borrower shall deliver to the Banks a report in form satisfactory to the Agent indicating, among other things, the conformity of the Borrower's business to the Business Plan and any variances therefrom during the preceding calendar month; and
(o) from time to time, with reasonable promptness, such other financial data and information (including accountants and management letters) and such other information concerning the Collateral, the Eligible Projects and the business and operations of the Borrower, as the Agent or any Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Silverleaf Resorts Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver or cause to be delivered to the Agent which the Agent shall promptly deliver to each of the Lenders:
(a) as soon as practicable, but, in any event not later than 90 one hundred twenty (120) days after the end of each fiscal year of the Parentyear, the consolidated and consolidating audited Consolidated balance sheets sheet of the Parent as Guarantor and its Subsidiaries at the end of such fiscal year, statements of cash flows, and the related consolidated and consolidating audited Consolidated statements of operationsincome, each and cash flows for such year, setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, with respect and accompanied by an auditor’s report and opinion prepared without qualification as to the consolidated scope of the audit by KPMG or another nationally recognized accounting firm, and any other information the Agent may reasonably request to complete a financial statements, Certified by the Accountantsanalysis of Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than 45 sixty (60) days after the end of each fiscal quarter (or ninety (90) days in the case of the Borrowersfiscal year end) of each fiscal year, copies of the consolidated and consolidating unaudited Consolidated balance sheets and statement of operations sheet of the Parent Guarantor and its Subsidiaries as at the end of such fiscal quarter, subject to year end adjustments, and the related statement unaudited Consolidated statements of income and cash flowsflows for the portion of the Parent Guarantor’s fiscal year then elapsed, all in reasonable detail and prepared in all material respects in accordance with GAAP, together with a certification by an Authorized Officer or the principal chief financial officer or accounting officer of each Borrower (the "CFO") Parent Guarantor that the consolidated information contained in such financial statements are prepared fairly presents in accordance with GAAP and fairly present all material respects the consolidated financial condition position of the Borrowers as at the close of business Parent Guarantor and its Subsidiaries on the date thereof (subject to year-end adjustments) adjustments and the results absence of operations for the period then endedfootnotes);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, above a statement (a “Compliance Certificate”) certified by an Authorized Officer or the chief financial officer or chief accounting officer of Parent Guarantor in the form of EXHIBIT D Exhibit G hereto (or in such other form as the "Compliance Certificate"Agent may reasonably approve from time to time) certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliancecompliance or non-compliance (as the case may be) with the covenants contained in §9. All income, PROVIDED THAT if the Borrowers shall at the time expense, debt and value associated with Real Estate or other Investments acquired or disposed of issuance of such certificate have knowledge of during any Default fiscal quarter will be added or Event of Defaulteliminated from calculations, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders on a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;pro forma basis, where applicable.
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers[Reserved];
(e) contemporaneously with[Reserved];
(f) [Reserved];
(g) from time to time such other financial data and information in the possession of the Borrower (including without limitation finalized auditors’ management letters, status of material litigation or promptly followingmaterial investigations against the Borrower or Borrower Subsidiaries and any settlement discussions relating thereto (unless the Borrower in good faith believe that such disclosure could result in a waiver or loss of attorney work product, attorney-client or any other applicable privilege). Any material to be delivered pursuant to this §7.4 may be delivered electronically directly to Agent or made available to Agent pursuant to an accessible website and the filing Lenders provided that such material is in a format reasonably acceptable to Agent, and such material shall be deemed to have been delivered to Agent and the Lenders upon Agent’s receipt thereof or mailing thereof, copies of all material of a financial nature filed with the SEC or sent access to the stockholders website containing such material. Upon the request of Agent, Borrower shall deliver paper copies thereof to Agent and the Borrowers; andLenders. Borrower authorize Agent and Arranger to disseminate any such materials through the use of Intralinks, SyndTrak or any other electronic information dissemination system, and the Borrower releases Agent and the Lenders from any liability in connection therewith (other than the liability based on Agent’s gross negligence or willful misconduct).
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers will deliver Deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, commencing with the fiscal year ending December 31, 1998, the consolidated and consolidating balance sheets of the Parent Borrower and its Subsidiaries as at the end of such year, statements of cash flows, and the related consolidated and consolidating statements of operationsincome and consolidated statements of retained earnings and cash flow for such year, each such statement setting forth in comparative form the figures for the previous fiscal yearyear and prepared in reasonable detail and in accordance with GAAP, and all such consolidated and consolidating financial statements to be in reasonable detailcertified without qualification by the Independent Public Accountants, prepared in accordance together with GAAP and, with respect a written statement from such Accountants to the consolidated financial statementseffect that they have read a copy of this Agreement, Certified by and that, in making the Accountantsexamination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such Accountants shall have obtained knowledge of any Default or Event of Default, they shall disclose in such statement any such Default or Event of Default; provided that such Accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each of the first three fiscal quarters in each fiscal year of the Borrower, commencing with the fiscal quarter of the Borrowersending March 31, 1999, copies of the unaudited consolidated and consolidating balance sheets and statement of operations of the Parent Borrower and its Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related consolidated and consolidating statements of income and consolidated statements of retained earnings and cash flow for such quarter and for the portion of the Borrower's fiscal year then elapsed, each such statement showing the comparison of cash flowsthe Borrower's performance for such periods (i) to the corresponding periods for the prior year, all in reasonable detail and (ii) to the Borrower's projected budget for such periods, and each prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations of the Borrower and its Subsidiaries for the period then endedperiods specified therein (in each case, subject to normal year-end audit adjustments);
(c) as soon as practicable, but in any event within (i) forty-five (45) days after the end of each month ending after the Original Closing Date and prior to May 30, 1999, and (ii) thirty (30) days after the end of each month thereafter, copies of the unaudited monthly consolidated and consolidating balance sheets of the Borrower and its Subsidiaries as at the end of such month and the related consolidated and consolidating statements of income for such month, each prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial condition of the Borrower and its Subsidiaries on the date thereof and the results of operations of the Borrower and its Subsidiaries for the periods specified therein (in each case, subject to normal year-end audit adjustments);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a), (b) and (bc) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT Exhibit D hereto (the a "Compliance Certificate"), setting forth (in the case of any Compliance Certificate delivered in connection with annual or quarterly financial statements) certified by the CFO that the Borrowers are in reasonable detail computations evidencing compliance with the covenants contained in ss.ss.7, 8 ss.11 and 9 hereof, as of (if applicable) reconciliations to reflect changes in GAAP since the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the Borrower;
(f) within ten (10) Business Days after the end of each calendar month or at such earlier time as the Agent may reasonably request, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month or other date so requested by the Agent;
(g) within ten (10) Business Days after the end of each calendar month, an Accounts Receivable aging report with respect to the Borrower in form and substance satisfactory to the Agent;
(h) from time to time as the Agent may reasonably request detailed management prepared reports summarizing the Borrowers; and' inventory, including information on the aging and obsolescence of such inventory;
(i) as soon as practicable, but in any event (A) for the fiscal year commencing on January 1, 1999, not later than thirty (30) days after the beginning of such fiscal year, and (B) for each fiscal year thereafter, not later than thirty (30) days prior to the beginning of such fiscal year, management-prepared consolidated and consolidating financial forecasts of the Borrower and its Subsidiaries with respect to such fiscal year, prepared on a quarterly basis in form satisfactory to the Agent;
(j) within ten (10) Business Days after the delivery of any financial statements pursuant to paragraph (a) or (b), a written explanation for the variations reflected in such financial statements from the financial forecasts for the applicable period, together with a narrative discussion and analysis by management of the financial condition and performance of the Borrower and its Subsidiaries as of the end of and for the periods covered by such financial statements;
(k) promptly after delivery thereof, copies of any officers' certificate or fairness opinion required to be delivered by the Borrower under ss.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers will deliver to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 one hundred twenty (120) days after the end of each fiscal year of the Parenteach Borrower, the audited consolidated balance sheet of each Borrower and consolidating balance sheets its subsidiaries and of the Parent as Borrowers collectively and their subsidiaries on a combined basis at the end of such year, statements of cash flows, and the related audited consolidated and consolidating statements of operationsincome, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGenerally Accepted Accounting Principles, with respect and accompanied by an auditor’s report prepared without qualification by a nationally recognized accounting firm reasonably acceptable to the consolidated Agent, and any other information the Agent may reasonably require to complete a financial statementsanalysis of the Borrowers, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Agent or the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the BorrowersBorrowers (including the fourth fiscal quarter in each year), copies of the unaudited consolidated balance sheet of each Borrower and consolidating balance sheets its Consolidated subsidiaries and statement of operations of the Parent Borrowers collectively and their Consolidated subsidiaries on a combined basis as at of the end of such quarter, subject to year end adjustments, and the related statement unaudited consolidated statements of income, changes in capital and cash flowsflows for the portion of the Borrowers’ fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPGenerally Accepted Accounting Principles (other than the inclusion of footnotes) and in addition a calculation of Operating Cash Flow, Excess Cash Flow, Total Debt Ratio, Woodlands Operating Payments, Woodlands Operating Distributions, Net Income of Woodlands Operating, Partner Subordinated Debt Payments and the Distributions to be made to the parties or other beneficial owners of the Borrowers for such period (or if such amounts relate to a prior period as permitted by §8.7(i)) and any other terms defined in this Agreement, and showing any variations for such quarter and the year-to-date of actual operations from the Budget, together with a certification by the principal financial or accounting officer Principal Financial Officer of each Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business and their respective Consolidated subsidiaries on the date thereof (subject to year-year end adjustments) and the results of operations for the period then ended);
(c) contemporaneously with the delivery of the financial statements referred to in clause (a) above, a statement of all contingent liabilities in excess of $100,000.00 of each Borrower and their respective Restricted Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guarantees, endorsements and other contingent obligations in respect of indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(d) [Intentionally omitted].
(e) not later than sixty (60) days after the end of the first three fiscal quarters of the Borrowers and not later than one hundred twenty (120) days after the end of each fiscal year of the Borrowers, a statement (a “Compliance Certificate”) certified by the Principal Financial Officer of each Borrower in the form of Exhibit E hereto setting forth in reasonable detail computations evidencing compliance with the covenants contained in §9 and the other covenants described therein, and (if applicable) reconciliations to reflect changes in Generally Accepted Accounting Principles since the Balance Sheet Date;
(f) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above and the Compliance Certificate referred to in subsection (e) above, a statement in the form spreadsheet listing each parcel of EXHIBIT D hereto income-producing Real Estate and its location, whether such Real Estate is owned by a Borrower or one of their respective Restricted Subsidiaries, its size (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7square footage for office and retail assets; number of apartments for multifamily; number of rooms for hotel/lodging/resort assets), 8 and 9 hereof, occupancy level as of the end quarter most recently ended, current quarter net income and partnership distributions and such other information as Agent may reasonably request, a specific listing of any new Eligible Accounts Receivable proposed to be included in the Borrowing Base, a listing of each Vertical Commercial Improvements project under construction or development, the budgeted cost of completing such project (on a fully developed basis including land) of Commercial Company, Land Company and their respective Restricted Subsidiaries and Unrestricted Subsidiaries, the amount expended and the remaining costs to be incurred, whether each such project constitutes a Speculative Development, the status of completion, the estimated completion date, the status of leasing and the summary and breakdown of the applicable period sources of capital for such construction and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretodevelopment;
(dg) annually not later than five (5) days after the end of each calendar month, a statement certified by an Authorized Officer of each Borrower that each sale of Undeveloped Residential Land or at Developed Residential Land for the preceding calendar month was for fair market value as a result of an arm’s-length sale of such other time as may be reasonably Property in the ordinary course of such Borrower’s business to a party that was not an Affiliate of any Borrower, any General Partner, any Second Tier Partner, any Third Tier Partner or any Guarantor, and that any easements, subdivision plats, road dedications, restrictions or similar agreements consented or subordinated to by the Title Insurance Company pursuant to the Tri-Party Agreement during the preceding calendar month shall not have any material negative impact to the Collateral;
(h) if requested by the Administrative Agent, copies of the financial statements, financial projections, all annual budget, variance reports federal income tax returns and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors amendments thereto of the Borrowers;
(ei) contemporaneously with[Intentionally omitted];
(j) not later than forty-five (45) days after the end of each fiscal quarter of the Borrowers (including the fourth fiscal quarter in each year), or promptly followinga statement, certified as true and correct by the Principal Financial Officer of each Borrower, of all recourse and Non-Recourse Indebtedness of each Borrower and their respective Restricted Subsidiaries as of the end of such fiscal quarter, including, with respect to each such Indebtedness, the filing outstanding principal amount as of the end of such fiscal quarter, the amount remaining undisbursed, if any, the maturity date and any extension options, the required monthly payments of principal and interest, the identity of the lender, the interest rate, the collateral for such Indebtedness and whether such Indebtedness is recourse or mailing thereofnon-recourse;
(k) not later than ten (10) days after approval by each Borrower’s executive committee, copies of all material of a financial nature filed with the SEC or sent Budget for the next calendar year. Such Budget shall be in form reasonably satisfactory to the stockholders Agent and shall be submitted to the Agent together with a narrative description of the assumptions upon which the Budget is based and such other information as the Agent may request;
(l) at such times as Agent shall determine in its discretion (but, so long as no Event of Default has occurred and is continuing, not more frequently than once each calendar year), Borrower shall deliver to Agent such title updates, UCC searches or other evidence as Agent may reasonably require to show that the Security Documents create a first lien and security interest in the Collateral; and
(m) from time to time such other financial data and information in the possession of the Borrowers; and, their respective Restricted Subsidiaries or their respective Unrestricted Subsidiaries (including without limitation auditors’ management letters, market comparable studies, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrowers or their respective Subsidiaries) as the Agent may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to the LendersAgent:
(a) as soon as practicable, but, but in any event not later than 90 one hundred fifty (150) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and statement of cash flow for such year, and the consolidating statements statement of operationsincome and statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and certified without qualification by KPMG Peat Marwick or by other independent certified public accountants satisfactory to the consolidated financial statementsAgent, Certified by that, in making the Accountantsexamination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 sixty (60) days after the end of each fiscal quarter of the Borrowersfirst three fiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and statement of cash flowsflow and consolidating statement of income and statement of cash flow, each for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D C hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in ss.9 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoBalance Sheet Date;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the Borrowers; andBorrower;
(e) promptly upon receipt thereof, a copy of each report or "management letter" submitted to the Borrower or any of its Subsidiaries by its independent accountants in connection with any annual, interim or special audit;
(f) thirty (30) days prior to the beginning of each fiscal year, an operating plan and budget for the Borrower and its Subsidiaries updating those projections delivered to the Agent and referred to in ss.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers will deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrowers, the consolidated balance sheet of BGI and consolidating balance sheets of the Parent its Subsidiaries as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, with respect and certified, without qualification and without an expression of uncertainty as to the consolidated financial statementsability of BGI or any of its Subsidiaries to continue as going concerns, Certified by Ernst & Young LLP or by other independent certified public accountants satisfactory to the AccountantsBank Agents, together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each of the first three fiscal quarter quarters of the Borrowers, copies of the unaudited consolidated balance sheet of BGI and consolidating balance sheets and statement of operations of the Parent its Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow for the portion of the Borrowers' fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of each Borrower (the "CFO") BGI that the consolidated information contained in such financial statements are prepared in accordance with GAAP fairly presents the financial position of BGI and fairly present the consolidated financial condition of the Borrowers as at the close of business its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrowers in substantially the form of EXHIBIT D Exhibit E hereto (the a "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if compliance with the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Defaultcovenants contained in ss. 10, the Borrowers shall include calculation of the Obligor Group Requirement and (if applicable) reconciliations to reflect changes in such certificate or otherwise deliver forthwith to GAAP since the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoBalance Sheet Date;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of any of the Borrowers;
(e) from time to time upon request of either Bank Agent, projections of BGI and its Subsidiaries updating those projections delivered to the Lenders and referred to in ss. 7.4.3 or, if applicable, updating any later such projections delivered in response to a request pursuant to this ss. 8.4(e); and
(f) from time to time such other financial data and information (including accountants, management letters) as either Bank Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Multicurrency Revolving Credit Agreement (Borders Group Inc)
Financial Statements, Certificates and Information. The Borrowers ICT will deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentICT, the consolidated balance sheet of ICT and its Subsidiaries and the consolidating balance sheets sheet of the Parent ICT and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and certified (as to the consolidated financial statements) without qualification by independent certified public accountants satisfactory to the Agent, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of ICT, copies of the unaudited consolidated balance sheet of ICT and its Subsidiaries and the unaudited consolidating balance sheets sheet of ICT and statement of operations of the Parent its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of ICT's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each Borrower (the "CFO") ICT that the consolidated information contained in such financial statements are prepared in accordance with GAAP fairly presents the financial position of ICT and fairly present the consolidated financial condition of the Borrowers as at the close of business its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of ICT in substantially the form of EXHIBIT Exhibit D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in section 11 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoBalance Sheet Date;
(d) annually promptly upon the mailing or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material financial statements, reports and proxy statements mailed to the public shareholders of a financial nature ICT or any stockholder of ICT, and copies of all registration statements and Forms 10-K, 10-Q and 8-K filed with the SEC Securities and Exchange Commission (or sent any successor thereto) or any national securities exchange by ICT or any stockholder of ICT.
(e) from time to time upon request of any Lender, projections of ICT and its Subsidiaries updating those projections delivered to the stockholders Lenders and referred to in section 8.4.2 or, if applicable, updating any later such projections delivered in response to a request pursuant to this Section;
(f) within fifteen (15) days after reasonable request therefor from the Agent, and in any event no more than once in each calendar quarter, an Accounts Receivable aging report;
(g) by April 30 of each year, the Borrowersannual budget of ICT and its Subsidiaries for the next fiscal year; and
(h) from time to time such other financial data and information (including accountants' management letters and information concerning intercompany loans) as the Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Ict Group Inc)
Financial Statements, Certificates and Information. The Borrowers will deliver to the LendersLender:
(a) as soon as practicable, but, in any event not later than 90 95 days after the end of each fiscal year of the ParentBorrowers, the consolidated and consolidating balance sheets of the Parent Borrowers as at the end of such year, statements of cash flows, and the related consolidated and consolidating statements of operations, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated and consolidating financial statements to be in reasonable detail, prepared prepared, in accordance with GAAP and, with respect to the consolidated financial statements, Certified certified by the Accountants. In addition, simultaneously therewith, the Borrowers shall use their best efforts to provide the Lender with a written statement from such Accountants to the effect that the Borrowers are in compliance with the covenants set forth in section 8 hereof, and that, in making the examination necessary to said certification, nothing has come to the attention of such Accountants that would indicate that any Default or Event of Default exists, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; PROVIDED THAT such Accountants shall not be liable to the Lender for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 days after the end of each fiscal quarter of the BorrowersBorrowers commencing with the fiscal quarter ending September 30, 1997, copies of the consolidated and consolidating balance sheets and statement of operations of the Parent Borrowers as at the end of such quarter, subject to year end adjustments, and the related statement of cash flows, all in reasonable detail and prepared in accordance with GAAP, GAAP with a certification by the principal financial or accounting officer of each Borrower the Borrowers (the "CFO") that the consolidated financial statements are prepared in accordance with GAAP and fairly present the consolidated financial condition of the Borrowers as at the close of business on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended, subject to year-end adjustments in accordance with GAAP;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, (i) a statement in the form of EXHIBIT D C hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7sections 6, 7 and 8 and 9 hereof, hereof as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliancecompliance with sections 7.1, 7.3, 7.8, and 8 hereof, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have or at any other time obtain knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders Lender a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
, and (dii) annually or at such other time as may be reasonably requested by a certificate in the Administrative Agent, copies form of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied EXHIBIT D hereto with respect to the boards of directors operating permits of the Borrowers;
(ed) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersParent; and
(e) from time to time such other financial data and other information (including accountants' management letters) as the Lender may reasonably request. The Borrowers hereby authorize the Lender to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by law.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver or cause to be delivered to the Agent which the Agent shall promptly deliver to each of the Lenders:
(a) as soon as practicable, but, in any event not later than 90 one hundred twenty (120) days after the end of each fiscal year of the Parentyear, the consolidated and consolidating audited Consolidated balance sheets sheet of the Parent as Guarantor and its Subsidiaries at the end of such fiscal year, statements of cash flows, and the related consolidated and consolidating audited Consolidated statements of operationsincome, each and cash flows for such year, setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, with respect and accompanied by an auditor’s report and opinion prepared without qualification as to the consolidated scope of the audit by KPMG or another nationally recognized accounting firm, and any other information the Agent may reasonably request to complete a financial statements, Certified by the Accountantsanalysis of Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than 45 sixty (60) days after the end of each fiscal quarter (or ninety (90) days in the case of the Borrowersfiscal year end) of each fiscal year, copies of the consolidated and consolidating unaudited Consolidated balance sheets and statement of operations sheet of the Parent Guarantor and its Subsidiaries as at the end of such fiscal quarter, subject to year end adjustments, and the related statement unaudited Consolidated statements of income and cash flowsflows for the portion of the Parent Guarantor’s fiscal year then elapsed, all in reasonable detail and prepared in all material respects in accordance with GAAP, together with a certification by an Authorized Officer or the principal chief financial officer or accounting officer of each Borrower (the "CFO") Parent Guarantor that the consolidated information contained in such financial statements are prepared fairly presents in accordance with GAAP and fairly present all material respects the consolidated financial condition position of the Borrowers as at the close of business Parent Guarantor and its Subsidiaries on the date thereof (subject to year-end adjustments) adjustments and the results absence of operations for the period then endedfootnotes);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, above a statement (a “Compliance Certificate”) certified by an Authorized Officer or the chief financial officer or chief accounting officer of Parent Guarantor in the form of EXHIBIT D Exhibit G hereto (or in such other form as the "Compliance Certificate"Agent may reasonably approve from time to time) certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliancecompliance or non-compliance (as the case may be) with the covenants contained in §9. All income, PROVIDED THAT if the Borrowers shall at the time expense, debt and value associated with Real Estate or other Investments acquired or disposed of issuance of such certificate have knowledge of during any Default fiscal quarter will be added or Event of Defaulteliminated from calculations, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders on a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;pro forma basis, where applicable.
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers[Reserved];
(e) contemporaneously with[Reserved];
(f) [Reserved];
(g) Within nine (9) months after the Closing Date, Borrower shall provide evidence reasonably satisfactory to Agent that it is actively engaged in marketing Real Estate and/or Material Assets of Borrower and/or Borrower Subsidiaries for sale or promptly following, the filing Refinancing in a commercially reasonable manner that would reasonably be expected to pay in full all Obligations arising under this Facility on or mailing thereof, copies of all material of a financial nature filed with the SEC or sent prior to the stockholders Maturity Date;
(h) from time to time such other financial data and information in the possession of the Borrowers; andBorrower (including without limitation finalized auditors’ management letters, status of material litigation or material investigations against the Borrower or Borrower Subsidiaries and any settlement discussions relating thereto (unless the Borrower in good faith believe that such disclosure could result in a waiver or loss of attorney work product, attorney-client or any other applicable privilege). Any material to be delivered pursuant to this §7.4 may be delivered electronically directly to Agent or made available to Agent pursuant to an accessible website and the Lenders provided that such material is in a format reasonably acceptable to Agent, and such material shall be deemed to have been delivered to Agent and the Lenders upon Agent’s receipt thereof or access to the website containing such material. Upon the request of Agent, Borrower shall deliver paper copies thereof to Agent and the Lenders. Borrower authorize Agent and Arranger to disseminate any such materials through the use of Intralinks, SyndTrak or any other electronic information dissemination system, and the Borrower releases Agent and the Lenders from any liability in connection therewith (other than the liability based on Agent’s gross negligence or willful misconduct).
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to the LendersLender:
(a1) as soon as practicable, but, in any event not later than 90 days after the end of each fiscal year of the Parent, the consolidated and consolidating balance sheets of the Parent as at the end of such year, statements of cash flows, and the related consolidated and consolidating statements of operations, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP and, with respect to the consolidated financial statements, Certified by the Accountants;
(b) as As soon as practicable, but in any event not later than 45 one hundred twenty (120) days after the end of each fiscal quarter year of the BorrowersBorrower, copies of the audited consolidated and consolidating balance sheets and statement of operations of the Parent as at the end of such quarterfinancial statements, subject to year end adjustments, the related statement of cash flows, all in reasonable detail and which statements shall have been prepared in accordance with GAAPGenerally Accepted Accounting Principles and shall have been certified by the Borrower's independent certified public accountants. Such annual statement shall include, at a minimum (with comparative information for the then prior fiscal year) a consolidated balance sheet, consolidated income statement, and consolidated cash flows, (together with consolidating schedules) and shall be accompanied by a written statement from such accountants to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default.
(2) As soon as practicable, but in any event not later than sixty (60) days after the end of each of the Borrower's fiscal quarters copies of the Borrower's financial statements, which statements shall have been prepared in accordance with Generally Accepted Accounting Principles (except for the absence of footnotes) and together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any no Default or Event of DefaultDefault then exists (or if a Default or Event of Default then exists, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature thereof). Such quarterly statement shall include, at a minimum (with comparative information for the then prior fiscal year) a balance sheet, income statement, and period of existence thereof cash flows for such quarter and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies that portion of the financial statementsBorrower's fiscal year then elapsed, financial projections, annual budget, variance reports prepared on a consolidated and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of the Borrowers; andconsolidating basis.
Appears in 1 contract
Samples: Line of Credit Agreement (Toymax International Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated and consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries as at of the end of such year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and certified by Xxxxxx Xxxxxxxx LLP or by other independent certified public accountants satisfactory to the consolidated Agents, reported on without a "going concern" or like qualification or exception, or qualification indicating that the scope of the audit was inadequate to permit such independent certified public accountants to certify such financial statementsstatements without such qualification, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, nothing shall have come to their attention indicating that any Default or Event of Default shall exist, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 (i) with respect to the first two fiscal quarters of the Borrower ending after the Closing Date, fifty (50) days after the end of each such two fiscal quarters of the Borrower and (ii) with respect to any other fiscal quarters of the Borrower, forty-five (45) days after the end of each such fiscal quarter of the BorrowersBorrower, copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) as soon as practicable, but in any event not later than (i) with respect to the first three months ending after the Closing Date, forty (40) days after the end of each such three months and (ii) with respect to any other month in each fiscal year, thirty (30) days after the end of each such month in each fiscal year of the Borrower, unaudited monthly consolidated financial statements of the Borrower and its Subsidiaries for such month prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial condition of the Borrower and its Subsidiaries on the date thereof (subject to quarterly and year-end adjustments);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit J hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in ss.13 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the Borrowers; andBorrower;
(f) within (i) during the period through June 30, 1997, thirty (30) days after the end of each calendar month, and (ii) during the period after June 30, 1997, fifteen (15) days after the end of each calendar month, or at such earlier time as the Agents may reasonably request, (A) a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month or other date so requested by the Agents, and (B) a Consigned Precious Metal Report setting forth (1) the amount of Consigned Precious Metal and Borrower's Precious Metal as of the end of such calendar month or other date so requested by the Agents, and (2) a calculation of the Consignment Advance Rate Percentage multiplied by the Fair Market Value of the sum of (y) Borrower's Precious Metal plus (z) Consigned Precious Metal as of the end of such calendar month or other date so requested by the Agents, in each case together with supporting schedules and documentation, with each such Borrowing Base Report and Consigned Precious Metal Report to be accompanied by a certification by the principal financial or accounting officer of the Borrower that the information contained therein is true and accurate in all material respects;
(g) within thirty (30) days after the end of each calendar month, an Accounts Receivable aging report;
(h) on or prior to September 30 of each calendar year, projections of the Borrower and its Subsidiaries updating those projections delivered to the Banks and referred to in ss.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Gold Consignment Agreement (Commemorative Brands Inc)
Financial Statements, Certificates and Information. The Borrowers will deliver to the LendersAgent and each Lender:
(a) as soon as practicable, but, in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrowers, the consolidated and consolidating balance sheets sheet of the Parent Borrowers as at the end of such year, statements of cash flows, and the related consolidated and consolidating statements statement of operations, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, and certified without qualification by Deloitte & Touche LLP or by other independent nationally recognized certified public accountants, together with respect a written statement from such accountants to the consolidated financial statementseffect that they have read a copy of this Agreement, Certified by and that, in making the Accountantsexamination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided, that such accountants shall not be liable to the Agent or any Lender for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 fifty (50) days after the end of each fiscal quarter of each fiscal year of the Borrowers, copies of the unaudited consolidated and consolidating balance sheets sheet and statement of operations of the Parent Borrowers as at the end of such quarter, subject to year end audit adjustments, the related and consolidated statement of cash flows, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of each Borrower (the "CFO") TRC that the consolidated such financial statements are have been prepared in accordance with GAAP and fairly present the consolidated financial condition of the Borrowers as at the close of business on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended;
(c) simultaneously with as soon as practicable, but in any event not later than forty-five (45) days after the delivery end of each fiscal quarter of each fiscal year of TRC, an accounts receivable aging summary report for the financial statements referred to in (a) and (b) above, a statement Borrowers substantially in the form of EXHIBIT D hereto (the "Compliance Certificate") certified historically furnished by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying Agent and otherwise reasonably acceptable to the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoAgent;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies no later than April 15th and October 15th of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors each fiscal year of the Borrowers, the annual forecasts or projections of the Borrowers for the current fiscal year (including the projected consolidated and consolidating balance sheets for the end of such fiscal year);
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC (including, without limitation, TRC’s Form 10-K, Form 10-Q and each Form 8-K (or , in each case, any comparable successor form promulgated by the SEC)) or sent to the stockholders of the Borrowerseach Borrower; and
(f) such other material information regarding the business, operations and prospects of the Borrowers (financial or otherwise) as the Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (TRC Companies Inc /De/)
Financial Statements, Certificates and Information. The Borrowers Parent and the Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentFiscal Year, the consolidated and consolidating balance sheets sheet of the Parent and its Subsidiaries, as at the end of such year, statements of cash flows, and the related consolidated and consolidating statements of operationsincome and retained earnings and consolidated statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, Fiscal Year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andconsistently applied, with respect and certified without qualification and without expression of uncertainty as to the consolidated financial statementsability of the Parent and its Subsidiaries to continue as going concerns, Certified by PricewaterhouseCoopers or by other independent certified public accountants satisfactory to the AccountantsAdministrative Agent, together with (i) a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default; and (ii) a copy of their accountants’ management letter (if any) for such Fiscal Year;
(b) as soon as practicable, but in any event not later than 45 within forty-five (45) days after the end of each fiscal quarter Fiscal Quarter, unaudited quarterly consolidated and consolidating financial statements of the BorrowersParent and its Subsidiaries for such Fiscal Quarter (i.e., copies of the consolidated and consolidating balance sheets and statement of operations sheet of the Parent and its Subsidiaries, as at the end of such quarterFiscal Quarter, subject to year end adjustments, and the related consolidated and consolidating statements of income and retained earnings and consolidated and consolidating statement of cash flowsflow for such Fiscal Quarter) and the unaudited consolidated and consolidating financial statements of the Parent and its Subsidiaries for the period commencing at the end of the previous Fiscal Year and ending with the end of such Fiscal Quarter, all in reasonable detail and each prepared in accordance with GAAPGAAP consistently applied, together with a certification by the principal financial or accounting officer officer(s) of each Borrower (the "CFO") Parent that the consolidated information contained in such financial statements are prepared fairly presents in accordance with GAAP and fairly present all material respects the consolidated financial condition of the Borrowers Parent and its Subsidiaries (as at the close of business a whole) on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) as soon as practicable, but in any event within thirty (30) days after the end of each month in each Fiscal Year, unaudited monthly consolidated and consolidating financial statements of Parent and its Subsidiaries for such month (i.e., the consolidated and consolidating balance sheet of the Parent and its Subsidiaries, as at the end of such month, and the related consolidated and consolidating statements of income and retained earnings and consolidated and consolidating statement of cash flow for such month) and the unaudited consolidated and consolidating financial statements of the Parent and its Subsidiaries for the period commencing at the end of the previous Fiscal Year and ending with the end of such month, each, prepared in accordance with GAAP consistently applied, together with a certification by the principal financial or accounting officer(s) of the Parent that the information contained in such financial statements fairly presents in all material respects the financial condition of the Parent and its Subsidiaries (as a whole) on the date thereof (subject to year-end adjustments);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer(s) of the Parent in substantially the form of EXHIBIT D Exhibit B hereto (the "a “Compliance Certificate"”) certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and (i) setting forth in reasonable detail computations evidencing such compliancecompliance with the covenants contained in §9 and (if applicable) reconciliations to reflect changes in GAAP since the Balance Sheet Date, PROVIDED THAT if (ii) setting forth in reasonable detail the Borrowers shall computation of Consolidated Total Funded Debt to EBITDA Ratio as at the time end of issuance of the relevant Fiscal Quarter and (iii) stating that such certificate have officer(s) has caused this Credit Agreement to be reviewed and has no knowledge of any Default or Event of DefaultDefault during such Fiscal Quarter or at the end of such year, the Borrowers shall include in or if such certificate officer(s) has such knowledge, specifying each Default or otherwise deliver forthwith to the Lenders a certificate specifying Event of Default and the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowersthereof;
(e) contemporaneously withas soon as available and in any event no later than within fifteen (15) days after the end of each calendar month, (i) a Collateral Update Certificate, (ii) an Accounts Receivable/Loan Reconciliation Report, (iii) a summary of inventory by type and location, (v) an accounts receivable aging report, and (iv) such other information relating to the Collateral as the Administrative Agent shall reasonably request, in each case, accompanied by such supporting detail and documentation as the Administrative Agent shall reasonably request;
(f) as soon as available and in any event no later than 1:00 p.m. (Boston time) on Tuesday of each week (or, if such Tuesday is not a Business Day or promptly followingif the preceding Monday is not a Business Day, in each case, on Wednesday of such week) (or with greater frequency as the Administrative Agent may request), a Borrowing Base Certificate with respect to the Collateral of the Borrower as of the close of business on the previous Saturday (or, if such day is not a Business Day, on the preceding Business Day), together with such other information relating to the Collateral as the Administrative Agent shall reasonably request, and accompanied by such supporting detail and documentation as the Administrative Agent shall reasonably request;
(g) not later than December 31st of each calendar year, the annual business plan of the Parent and its Subsidiaries for the succeeding Fiscal Year on a monthly basis in reasonable detail, including projected consolidated and consolidating balance sheets, statements of income and retained earnings and cash flow statements of the Parent and its Subsidiaries for the succeeding Fiscal Year on a monthly basis, in each case in the same format as the audited balance sheet, statement of income and retained earnings and cash flow statement respectively;
(h) promptly after the sending or filing or mailing thereof, copies of all material reports which the Parent or any Subsidiary of a financial nature filed the Parent sends to any of its security holders, and copies of all reports and registration statements which the Parent or any Subsidiary of the Parent files with the SEC Securities and Exchange Commission or any national securities exchange (including, without limitation, all 10-K, 10-Q and 8-K reports), which reports are required to be sent to security holders or so filed by law or by regulation or under the stockholders terms of the BorrowersParent’s listing agreement with NASDAQ or any other stock exchange; and
(i) from time to time such other financial data and information (including accountants’ management letters) as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Quaker Fabric Corp /De/)
Financial Statements, Certificates and Information. The Borrowers Credit Parties will deliver to the Administrative Agent and, upon request, to the Lenders:
(a) as soon as practicable, but, but in any event not no later than 90 ninety (90) days after the end of each fiscal year Fiscal Year,
i. the consolidated and consolidating balance sheet of the Parent, the consolidated Borrowers and consolidating balance sheets of the Parent their Restricted Subsidiaries, as at the end of such year, statements of cash flowsFiscal Year, and the related consolidated and consolidating statements of income or operations, cash flows and shareholders’ equity for such Fiscal Year, each setting forth in comparative form the figures for the previous fiscal year, Fiscal Year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP and, consistently applied and such consolidated and consolidating financial statements to be audited and accompanied by a report and opinion prepared in accordance with respect generally accepted auditing standards by independent certified public accountants reasonably satisfactory to the Administrative Agent and certified without qualification and without expression of uncertainty as to the ability of Parent, the Borrowers and their Restricted Subsidiaries to continue as going concerns (other than a “going concern” qualification resulting from an upcoming maturity under this Agreement or the Term Credit Agreement occurring within one year from the time of such opinion is delivered or a breach of Section 7.13 hereunder), together with a copy of their accountants’ management letter (if any) for such Fiscal Year and
ii. a Compliance Certificate duly executed by a Financial Officer of the Borrower Representative, which, among other things,
(A) attaches and certifies to the foregoing consolidated and consolidating financial statements, Certified by accountants statements, management letters and a management discussion and analysis prepared in connection with such financial statements,
(B) certifies that the Accountantsinformation contained in such consolidated and consolidating financial statements fairly presents in all material respects the financial condition of Parent, the Borrowers and their Restricted Subsidiaries on the dates indicated therein,
(C) appends computations evidencing the Fixed Charge Coverage Ratio, the First Lien Net Leverage Ratio, and Excess Cash Flow, in each case, for the Reference Period ended as of the last day of such Fiscal Year and specifying whether the Credit Parties have complied with Sections 7.13 and 7.15, and
(D) states that such Financial Officer has reviewed this Agreement and the other Loan Documents and has no knowledge of any Default or Event of Default during such Fiscal Year, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the nature thereof;
(b) as soon as practicable, but in any event not no later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowers, copies first three Fiscal Quarters of each Fiscal Year
i. the consolidated and consolidating balance sheets and statement of operations sheet of the Parent Parent, the Borrowers and their Restricted Subsidiaries, as at the end of such quarterFiscal Quarter, subject to year end adjustments, and the related statement consolidated and consolidating statements of income or operations, cash flowsflows and shareholders’ equity for such Fiscal Quarter and the portion of the Fiscal Year through the end of such Fiscal Quarter, each setting forth in comparative form the figures for the previous Fiscal Quarter of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year and all such consolidated and consolidating financial statements to be in reasonable detail and prepared in accordance with GAAPdetail, with a certification by the principal financial or accounting officer of each Borrower (the "CFO") that the consolidated financial statements are prepared in accordance with GAAP consistently applied and
ii. a Compliance Certificate duly executed by a Financial Officer of the Borrower Representative, which, among other things,
(A) attaches and certifies to the foregoing consolidated and consolidating financial statements and a management discussion and analysis prepared in connection with such financial statements (subject to year-end adjustments and the absence of footnotes),
(B) certifies that the information contained in such consolidated and consolidating financial statements fairly present presents in all material respects the consolidated financial condition of Parent, the Borrowers and their Restricted Subsidiaries on the dates indicated therein,
(C) appends computations evidencing the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio for the Reference Period ended as of the last day of such Fiscal Quarter and specifying whether the Credit Parties have complied with Sections 7.13 and 7.15, and
(D) states that such Financial Officer has reviewed this Agreement and the other Loan Documents and has no knowledge of any Default or Event of Default during such Fiscal Quarter, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the nature thereof;
(c) as soon as practicable, but in any event no later than forty five (45) days after the end of each Fiscal Month
i. the unaudited monthly consolidated and consolidating financial statements of Parent, the Borrowers and their Restricted Subsidiaries for such Fiscal Month, including the consolidating balance sheet of Parent, the Borrowers and their Restricted Subsidiaries, as at the close end of business such Fiscal Month, the related consolidating statements of income or operations and cash flows for such Fiscal Month and for the portion of the Fiscal Year then ended, each setting forth in comparative form the figures for the corresponding Fiscal Month of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year, each, prepared in accordance with GAAP consistently applied and
ii. a Compliance Certificate duly executed by a Financial Officer of the Borrower Representative, which, among other things,
(A) attaches and certifies to the foregoing consolidated financial statements and a management discussion and analysis prepared in connection with such financial statements (subject to year-end adjustments and the absence of footnotes),
(B) certifies that the information contained in such financial statements fairly presents in all material respects the financial condition of Parent, the Borrowers and their Restricted Subsidiaries on the date thereof (subject to year-end adjustments) adjustments and the results absence of operations footnotes),
(C) appends computations evidencing the Fixed Charge Coverage Ratio for the period then ended;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, Reference Period ended as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance last day of such certificate Fiscal Month and specifying whether the Credit Parties have complied with Section 7.13, and
(D) states that such Financial Officer has reviewed this Agreement and the other Loan Documents and has no knowledge of any Default or Event of DefaultDefault during such Fiscal Month, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the Borrowers shall include in such certificate or otherwise deliver forthwith nature thereof to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoAdministrative Agent’s reasonable satisfaction;
(d) annually or as soon as available and in any event within twenty (20) days after the end of each calendar month (or, during a Weekly Collateral Reporting Trigger Period, within two Business Days after the end of each calendar week), and at such other time times as the Administrative Agent may reasonably require, (i) a Borrowing Base Certificate with respect to the Collateral of the Borrowers as of the close of business of such month (or if weekly reporting applies, as of the close of business of such week on the immediately preceding Business Day (provided that if such week is the last week of a month, then the Borrowing Base Certificate for such week shall be delivered as of the last day of the month)), accompanied by accounts receivable and accounts payable agings and copies of the Borrowers’ sales journal, cash receipts journal and credit memo for the relevant period, and such other supporting detail, documentation and information related thereto as the Administrative Agent shall reasonably request (including copies of all invoices prepared in connection with the Accounts) and (ii) a perpetual inventory and the Administrative Agent’s standard form of Inventory report then in effect (or the form most recently requested by the Administrative Agent), by each category of Inventory, together with a description of the monthly (or, if applicable, weekly) change in each category of Inventory, in each case, as of the close of business on the last day of such month or week, as applicable, in each case, accompanied by such supporting detail, documentation and information as the Administrative Agent shall reasonably request;
(e) As soon as practicable and in any event within twenty (20) days after the end of each Fiscal Month, (i) a summary and detailed aging of the Borrowers’ Accounts in form and substance satisfactory to the Administrative Agent in its Permitted Discretion, (ii) a summary and detailed aging of the Borrowers’ accounts payable in form and substance satisfactory to the Administrative Agent in its Permitted Discretion, (iii) a listing of any held checks, (iv) a perpetual inventory report for the Borrowers by each category of Inventory and otherwise in form and substance satisfactory to the Administrative Agent in its Permitted Discretion, and (v) reconciliations of Accounts, accounts payable, Inventory and loan balances to the general ledger;
(f) within 30 days after each June 30 and December 31, a list of the names and addresses of all Account Debtors of the Borrowers;
(g) not later than January 31 of each Fiscal Year, an annual business plan and projections for Parent, the Borrowers and their Restricted Subsidiaries for the following Fiscal Year on a monthly basis (such projections to include consolidated balance sheets, statements of cash flows, statements of income or operations of Parent, the Borrowers and their Restricted Subsidiaries and Overall Excess Availability, in each case prepared on a month-by-month basis and such other matters reasonably requested by the Administrative Agent);
(h) promptly upon receipt thereof, copies of the financial statementsany detailed audit reports, financial projectionscontrol reports, annual budgetmanagement letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Credit Parties by independent accountants other consultants or advisors in connection with the accounts or books of ay Credit Party or any Subsidiary or any audit of any of them;
(i) immediately, variance reports and business plan in any event within two (2) Business Days after receipt by a member of Senior Management thereof by any Credit Party or any Restricted Subsidiary thereof, copies of each notice or other correspondence received from any Governmental Authority concerning any material investigation by such agency regarding financial or other operational results of any Credit Party or any Subsidiary;
(j) promptly following the Borrowers request of the Administrative Agent, a report summarizing the insurance coverage in effect for each Credit Party and its Restricted Subsidiaries and promptly following the modification, renewal, replacement of any insurance policy of any Credit Party or its Restricted Subsidiaries, updated insurance certificates and endorsements evidencing such coverage;
(k) as soon as practicable, but in any event no later than ten (10) days following the end of any Fiscal Quarter in which there has been a change since the last Fiscal Quarter in the Intellectual Property or bank accounts of the Credit Parties, as applicable, updated Schedules 5.07, 5.17, and 7.08, an updated Exhibit A to the IP Security Agreement, or an updated list of bank accounts in the Perfection Certificate identified in Section 5.19, in each case in substantially the same form in which such information is supplied as the most recent schedule of the same delivered to the boards of directors Administrative Agent; and
(l) promptly following a request therefor, from time to time such sales projections, budgets, operating plans or other financial data or information as the Administrative Agent or any Lender may reasonably request.
(m) Notwithstanding the foregoing, the obligations to provide certain financial statements in Section 6.04(a)(i) and (b)(i) may also be satisfied by the furnishing of the Borrowers;
Form 10-K or 10-Q, as applicable, of Parent (eor Parent’s direct or indirect parent company) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent otherwise made available to the stockholders Administrative Agent for delivery to each Lender, in each case, within the time periods specified in Section 6.04(a) and (b); provided, that to the extent such financial statements relate to any Person or Persons other than Parent, the Borrowers and their Restricted Subsidiaries, on a standalone basis, (including, without limitation, any Unrestricted Subsidiaries or any direct or indirect parent of Parent), such financial statements shall be accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such Person or Persons, on the one hand, and Parent, the Borrowers and their Restricted Subsidiaries, on a standalone basis, on the other hand, which consolidating information shall be certified by a Financial Officer of the Borrowers; andBorrower Representative as having been fairly presented in all material respects.
Appears in 1 contract
Samples: Credit Agreement (PetIQ, Inc.)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicablewithin fifteen (15) days of the filing of RPB’s Form 10-K with the SEC, but, but in any event not later than 90 one hundred twenty (120) days after the end of each fiscal year of the Parentcalendar year, the consolidated audited Consolidated balance sheet of RPB and consolidating balance sheets of the Parent as its Subsidiaries at the end of such year, and the related audited consolidated statements of income, changes in capital and cash flowsflows for such year, and an unaudited Consolidated balance sheet of Borrower and its Subsidiaries at the end of such year, and the related unaudited consolidated and consolidating statements of operationsincome, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, together with respect a certification by the chief financial officer or accounting officer of RPB that the information contained in such financial statements fairly presents the financial position of RPB and its Subsidiaries and the Borrower and its Subsidiaries, respectively, and accompanied by an auditor’s report (as to RPB and its Subsidiaries) prepared without qualification as to the consolidated scope of the audit by a nationally recognized accounting firm reasonably approved by Agent, and any other information the Lenders may reasonably request to complete a financial statementsanalysis of RPB and its Subsidiaries and Borrower and its Subsidiaries, Certified by the Accountantsrespectively;
(b) as soon as practicablewithin fifteen (15) days of the filing of RPB’s Form 10-Q with the SEC, but in any event not later than 45 sixty (60) days after the end of each fiscal quarter of the Borrowersfirst three calendar quarters of each year, copies of the unaudited consolidated balance sheet of RPB and consolidating balance sheets its Subsidiaries and statement of operations of the Parent Borrower and its Subsidiaries, respectively, as at the end of such quarter, subject to year end adjustments, and the related statement unaudited consolidated statements of income and cash flowsflows for the portion of Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal chief financial officer or accounting officer of each Borrower (the "CFO") RPB that the consolidated information contained in such financial statements are prepared in accordance with GAAP fairly presents the financial position of RPB and fairly present its Subsidiaries and the consolidated financial condition of the Borrowers as at the close of business Borrower and its Subsidiaries, respectively, on the date thereof (subject to year-end adjustments) and the results of operations for the period then endedthereof;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer or chief accounting officer of RPB in the form of EXHIBIT D Exhibit J hereto (or in such other form as the "Compliance Certificate"Agent may approve from time to time) certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if compliance or non-compliance (as the Borrowers shall at case may be) with the time of issuance of such certificate have knowledge of any Default or Event of Default, covenants contained in §9 and the Borrowers shall include other covenants described in such certificate and (if applicable) setting forth reconciliations to reflect changes in GAAP since the Balance Sheet Date. Borrower shall submit with the Compliance Certificate a Borrowing Base Certificate in the form of Exhibit I attached hereto pursuant to which the Borrower shall calculate the amount of the Borrowing Base as of the end of the immediately preceding calendar quarter. All income, expense and value associated with Real Estate or otherwise deliver forthwith other Investments disposed of during any quarter will be eliminated from calculations, where applicable. The Compliance Certificate shall be accompanied by copies of the statements of Net Operating Income for such calendar quarter for each of the Mortgaged Properties, prepared on a basis consistent with the statements furnished to the Lenders Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certificate specifying certification by the nature and period chief financial officer or chief accounting officer of existence thereof and what action RPB that the Borrowers propose to take with respect theretoinformation contained in such statement fairly presents the Net Operating Income of the Mortgaged Properties for such periods;
(d) annually or at such other time as may be reasonably requested by simultaneously with the Administrative Agent, copies delivery of the financial statementsstatements referred to in clause (a) above, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards statement of directors all contingent liabilities involving amounts of $1,000,000.00 or more of the BorrowersBorrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, (i) a Rent Roll for each of the Mortgaged Properties and a summary thereof in form satisfactory to Agent as of the end of each calendar quarter (including the fourth calendar quarter in each year), together with a listing of each tenant that has taken occupancy of such Mortgaged Property during each calendar quarter (including the fourth calendar quarter in each year), (ii) an operating statement for each of the Mortgaged Properties for each such calendar quarter and year to date and a consolidated operating statement for the Mortgaged Properties for each such calendar quarter and year to date (such statements and reports to be in form reasonably satisfactory to Agent), and (iii) a copy of each Lease or amendment to any Lease entered into with respect to a Mortgaged Property during such calendar quarter (including the fourth calendar quarter in each year);
(f) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (i) listing the Real Estate owned by the Borrower and its Subsidiaries (or in which the Borrower or its Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, (ii) listing the Indebtedness of the Borrower and its Subsidiaries (excluding Indebtedness of the type described in §8.1(b)-(e)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non-recourse, and (iii) listing the properties of the Borrower and its Subsidiaries which are Construction in Progress and providing a brief summary of the status of such development;
(g) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature nature, reports or proxy statements sent to the shareholders of RPB;
(h) promptly after they are filed with the SEC or sent to the stockholders Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the BorrowersBorrower and each Guarantor;
(i) promptly upon the filing hereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent) and annual, quarterly or monthly reports and other statements and reports which RPB or Borrower shall file with the SEC;
(j) evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Mortgaged Properties;
(k) not later than January 31 of each year, a budget and business plan for the Borrower and its Subsidiaries for the next calendar year; and
(l) from time to time such other financial data and information in the possession of the Borrower, each Guarantor or their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or any Guarantor) as the Agent may reasonably request. Any material to be delivered pursuant to this §7.4 may be delivered electronically directly to Agent and the Lenders provided that such material is in a format reasonably acceptable to Agent, and such material shall be deemed to have been delivered to Agent and the Lenders upon Agent’s receipt thereof. Upon the request of Agent, Borrower and RPB shall deliver paper copies thereof to Agent and the Lenders. Borrower and RPB authorize Agent and Arranger to disseminate any such materials through the use of Intralinks, SyndTrak or any other electronic information dissemination system, and the Borrower and RPB release Agent and the Lenders from any liability in connection therewith.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Republic Property Trust)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicable, but, available and in any event not later than 90 within ninety (90) days after the end of each fiscal year of the Parentcalendar year, the an audited consolidated and consolidating balance sheets sheet of the Parent and its Subsidiaries as at of the end of such year, statements of cash flows, year and the related audited consolidated and consolidating statements of operationsincome, each shareholders’ equity and cash flows for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all certified by PricewaterhouseCoopers LLP or other independent public accountants of nationally recognized standing, with such consolidated and consolidating financial statements certification to be in reasonable detail, prepared in accordance with GAAP and, with respect free of exceptions and qualifications not acceptable to the consolidated financial statements, Certified by the AccountantsRequired Lenders;
(b) as soon as practicable, but available and in any event not later than 45 within forty-five (45) days after the end of each fiscal quarter of the Borrowersfirst three (3) calendar quarters of each year, copies a consolidated balance sheet of the consolidated Parent and consolidating balance sheets its Subsidiaries as of the end of such quarter and the related statement of income and statement of operations cash flows for such quarter and for the portion of the Parent as year ended at the end of such quarter, subject to year end adjustments, setting forth in each case in comparative form the related statement figures for the corresponding quarter and the corresponding portion of cash flowsthe previous year, all in reasonable detail and prepared in accordance with GAAP, with a certification by the principal financial or accounting officer of each Borrower (the "CFO") that the consolidated financial statements are prepared in accordance with GAAP and fairly present the consolidated financial condition of the Borrowers as at the close of business on the date thereof certified (subject to normal year-end adjustments) as to fairness of presentation, GAAP and consistency by the results chief financial officer, chief accounting officer or treasurer of operations for the period then endedParent;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and and, other than the financial statements delivered for the last calendar quarter of the calendar year, (b) above, a statement (a “Compliance Certificate”) certified by the chief financial officer or chief accounting officer of Parent in the form of EXHIBIT D Exhibit F hereto (or in such other form as the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance Agent may approve from time to time). Calculations of income, expense and value associated with Real Estate or other Investments acquired or disposed of during any quarter will be adjusted, where applicable. Parent shall submit with the covenants contained Compliance Certificate a Unencumbered Asset Certificate in ss.ss.7, 8 and 9 hereof, the form of Exhibit E hereto (a “Unencumbered Asset Certificate”) pursuant to which Parent shall calculate the amount of the Unencumbered Asset Availability as of the end of the applicable period immediately preceding fiscal quarter, list the Subject Properties and setting forth certify that each Subject Property included therein and in reasonable detail computations evidencing the calculation of the Unencumbered Asset Availability satisfies all of the requirements contained in this Agreement for the same to be included therein. The Compliance Certificate shall be accompanied by copies of the statements of Consolidated Net Operating Income for such compliancefiscal quarter for each of the Subject Properties, PROVIDED THAT if prepared on a basis consistent with the Borrowers shall at statements furnished to the time Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the chief financial officer, chief accounting officer or treasurer of issuance of such certificate have knowledge of any Default or Event of Default, Parent that the Borrowers shall include information contained in such certificate or otherwise deliver forthwith to statement fairly presents in all material respects the Lenders Consolidated Net Operating Income for such periods. Such Unencumbered Asset Certificate shall specify whether there are any defaults under leases at a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoSubject Property;
(d) annually or at such other time as may be reasonably requested by simultaneously with the Administrative Agent, copies delivery of the financial statements referred to in subsections (a) and, other than the financial statements delivered for the last calendar quarter of the calendar year, (b) above, (i) a Rent Roll for each of the Subject Properties, and a combined Rent Roll for all of the Subject Properties and a summary thereof in form satisfactory to Agent as of the end of each calendar quarter (including the fourth calendar quarter in each year) and (ii) an operating statement for each of the Subject Properties for each such quarter and year to date, a consolidated operating statement for the Subject Properties for each such quarter and year to date, and a balance sheet for the Subsidiary Guarantor which owns or leases any Subject Property as at the end of the most recently ended calendar quarter (such statements, balance sheets and reports to be in form reasonably satisfactory to Agent), together with a certification by the chief financial projectionsofficer, annual budgetchief accounting officer or treasurer of Parent that the information contained therein is true, variance reports correct and business plan concerning the Borrowers complete in substantially the same form in which such information is supplied to the boards of directors of the Borrowersall material respects;
(e) contemporaneously with, or promptly following, upon the filing or mailing thereofrequest of the Agent, copies of all material of a financial nature filed with the SEC statements, reports or proxy statements sent to the stockholders shareholders of Parent;
(f) upon the request of the BorrowersAgent, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent) and annual, quarterly, monthly or special (8-K) reports which Parent or Borrower shall file with the SEC; provided that, in the case of annual and quarterly reports on Forms 10-K and 10-Q, respectively, such reports shall be deemed to be delivered hereunder if posted on the Parent’s website;
(g) any notice received by the Borrower or any Guarantor of any pending, threatened or contemplated eminent domain proceedings against (i) any of the Subject Properties or (ii) any other Real Estate which may, in the case of this clause (ii), individually or in the aggregate have any Material Adverse Effect; and
(h) from time to time such other financial data and information in the possession of the Borrower, each Guarantor or their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower and any settlement discussions relating thereto, and information as to legal and regulatory changes affecting the Borrower or any Guarantor) as the Agent or any Lender may reasonably request. Any material to be delivered pursuant to this §7.4 may be delivered electronically directly to Agent and the Lenders provided that such material is in a format reasonably acceptable to Agent, and such material shall be deemed to have been delivered to Agent and the Lenders upon Agent’s receipt thereof. Upon the request of Agent, Borrower and Parent shall deliver paper copies thereof to Agent and the Lenders. Borrower and Parent authorize Agent and Arranger to disseminate any such materials through the use of Intralinks, SyndTrak or any other electronic information dissemination system, and the Borrower and Parent release Agent and the Lenders from any liability in connection therewith.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower and Guarantors will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicableavailable, but, but in any event not later than 90 one hundred twenty (120) days after the end of each fiscal year of the Parentyear, the consolidated audited Consolidated balance sheet of Parent Company and consolidating balance sheets of the Parent as its Subsidiaries at the end of such year, statements of cash flows, and the related audited consolidated and consolidating statements of operationsincome, each changes in capital and cash flows for such year, setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, together with respect a certification by the Executive Vice President Finance, the chief financial officer or the chief accounting officer of Parent Company that the information contained in such financial statements fairly presents in all material respects the financial position of Parent Company and its Subsidiaries as of and for the periods presented, and accompanied by an auditor’s report prepared without qualification as to the consolidated scope of the audit by a nationally recognized accounting firm reasonably approved by Agent, and any other information the Lenders may reasonably request to complete a financial statements, Certified by the Accountantsanalysis of Parent Company and its Subsidiaries;
(b) as soon as practicableavailable, but in any event not later than 45 sixty (60) days after the end of each fiscal quarter of the Borrowerseach fiscal year, copies of the unaudited consolidated balance sheet of Parent Company and consolidating balance sheets and statement of operations of the Parent its Subsidiaries, as at the end of such quarter, subject to year end adjustments, and the related statement unaudited consolidated statements of income and cash flowsflows for the portion of Parent Company’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal Executive Vice President Finance, the chief financial officer or the chief accounting officer of each Borrower (the "CFO") Parent Company that the consolidated information contained in such financial statements are prepared fairly presents in accordance with GAAP all material respects the financial position of Parent Company and fairly present the consolidated financial condition of the Borrowers as at the close of business its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by the Executive Vice President Finance, the chief financial officer or the chief accounting officer of Parent Company in the form of Exhibit J hereto (or in such other form as the Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in §9 and the other covenants described in such certificate and (if applicable) setting forth reconciliations to reflect changes in GAAP since the Balance Sheet Date and including a statement of the principal balance of any Capitalized Lease Obligations of Borrower and its Subsidiaries. Parent Company shall submit with the Compliance Certificate a Borrowing Base Certificate in the form of Exhibit I attached hereto pursuant to which Parent Company shall calculate the amount of the Unencumbered Asset Pool Availability as of the end of the immediately preceding fiscal quarter. The Compliance Certificate shall with respect to any completed sale, encumbrance, refinance or transfer be adjusted in the best good faith estimate of the Borrower to give effect to such sale, encumbrance, refinance or transfer. For example, all income, expense and value associated with Real Estate or other Investments disposed of during any quarter will be eliminated from calculations, where applicable. The Compliance Certificate shall be accompanied by a written notice of the removal from the Unencumbered Asset Pool of any Real Estate with an Unencumbered Asset Pool Value of $10,000,000 or less, copies of the statements of Net Operating Income for such fiscal quarter for each of the Unencumbered Asset Pool Properties, prepared on a basis consistent with the statements furnished to the Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by the Executive Vice President Finance, the chief financial officer or the chief accounting officer of Parent Company that the information contained in such statement fairly presents in all material respects the Net Operating Income of the Unencumbered Asset Pool Properties for such periods;
(d) [Intentionally Omitted.]
(e) simultaneously with the delivery of the financial statements referred to in subsection (a) above, the statement of all contingent liabilities which would be included in Indebtedness of the Borrower, the Guarantors and their Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others);
(f) upon the request of Agent not more than once in any period of twelve (12) months unless a Default has occurred and is continuing (i) a Rent Roll for each of the Unencumbered Asset Pool Properties in form satisfactory to Agent as of the end of each fiscal quarter (including the fourth fiscal quarter in each fiscal year), together with a listing of each tenant or licensee that has taken occupancy of such Unencumbered Asset Pool Property during each fiscal quarter (including the fourth fiscal quarter in each fiscal year), and (ii) an operating statement for each Unencumbered Asset Pool Property for each such fiscal quarter and year to date and a consolidated operating statement for each Unencumbered Asset Pool Property for each such fiscal quarter and year to date (such statements and reports to be in form reasonably satisfactory to Agent);
(g) upon the request of Agent not more than once in any period of twelve (12) months unless a Default has occurred and is continuing, a statement (i) listing the Real Estate owned by the Borrower, Guarantors and their Subsidiaries (or in which the Borrower, the Guarantors or their Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, (ii) listing the Indebtedness of the Borrower, the Guarantors and their Subsidiaries (excluding Indebtedness of the type described in §8.1(b)-(e)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non-recourse, and (iii) listing the properties of the Borrower, the Guarantors and their Subsidiaries which are Development Properties and providing a brief summary of the status of such development;
(h) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the owners of Parent Company;
(i) upon written request of the Agent, copies of all annual federal income tax returns and amendments thereto of the Borrower and Guarantors;
(j) [Intentionally Omitted];
(k) upon written request of the Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Unencumbered Asset Pool Properties;
(l) upon written request of the Agent, (i) not later than January 31 of each year, a budget and business plan for Parent Company and its Subsidiaries for the next calendar year and (ii) beginning with the financial statements delivered for the third quarter of 2020 and simultaneous with the delivery of the financial statements referred to in (a) and (b) above, a statement discussion and analysis by Parent Company’s management of the Parent Company’s strategy and progress against budget and business plan of Parent Company and its Subsidiaries; and
(i) from time to time such other financial data and information in the form possession of EXHIBIT D hereto the Borrower, the Guarantors or their respective Subsidiaries (including, without limitation, auditors’ management letters, status of litigation or investigations against the "Compliance Certificate"Borrower or Guarantors and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower and the Guarantors) certified by as the CFO that Agent (or any Lender requesting through the Borrowers are in compliance Agent) may reasonably request. The Borrower shall cooperate with the covenants contained Agent in ss.ss.7connection with the publication of certain materials and/or information provided by or on behalf of the Borrower. Documents required to be delivered pursuant to the Loan Documents shall be delivered by or on behalf of the Borrower to the Agent and the Lenders (collectively, 8 “Information Materials”) pursuant to this Section and 9 hereofthe Borrower shall designate Information Materials (a) that are either available to the public or not material with respect to the Borrower and its Subsidiaries or any of their respective securities for purposes of United States federal and state securities laws, as “Public Information” and (b) all other information shall be considered “Private Information.” Any material to be delivered pursuant to this §7.4 may be delivered electronically directly to Agent and the Lenders provided that such material is in a format reasonably acceptable to Agent, and such material shall be deemed to have been delivered to Agent and the Lenders upon Agent’s receipt thereof. Upon the request of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of DefaultAgent, the Borrowers Borrower and the Guarantors shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, paper copies of the financial statementsrequested documents to Agent and the Lenders. The Borrower and the Guarantors authorize Agent and Joint Lead Arrangers and Bookrunners to disseminate any such materials, financial projectionsincluding, annual budgetwithout limitation, variance reports the Information Materials through the use of Intralinks, SyndTrak or any other electronic information dissemination system (an “Electronic System”). Any such Electronic System is provided “as is” and business plan concerning “as available.” The Agent and the Borrowers Joint Lead Arrangers and Bookrunners do not warrant the adequacy of any Electronic System and expressly disclaim liability for errors or omissions in substantially any notice, demand, communication, information or other material provided by or on behalf of Borrower that is distributed over or by any such Electronic System (“Communications”). No warranty of any kind, express, implied or statutory, including, without limitation, 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 Agent or the same form Joint Lead Arrangers and Bookrunners in which such information is supplied connection with the Communications or the Electronic System. In no event shall the Agent, the Joint Lead Arrangers and Bookrunners or any of their directors, officers, employees, agents or attorneys have any liability to the boards Borrower or the Guarantors, any Lender or any other Person for damages of directors any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrowers;
Borrower’s, any Guarantors’, the Agent’s, any Joint Lead Arranger’s or Bookrunner’s transmission of Communications through the Electronic System, and the Borrower and the Guarantors release Agent, the Joint Lead Arrangers and Bookrunners and the Lenders from any liability in connection therewith. Certain of the Lenders (eeach, a “Public Lender”) contemporaneously withmay have personnel who do not wish to receive material non-public information with respect to the Borrower, its Subsidiaries or its Affiliates, or promptly followingthe 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 identify that portion of the Information Materials that may be distributed to the Public Lenders and that (i) all such Information 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 Information Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Agent, the filing or mailing thereof, copies of all Lenders and the Joint Lead Arrangers and Bookrunners to treat such Information Materials as not containing any material of a financial nature filed non-public information with the SEC or sent respect to the stockholders Borrower, its Subsidiaries, its Affiliates or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the Borrowersextent such Information Materials constitute confidential information, they shall be treated as provided in §18.7); and(iii) all Information Materials marked “PUBLIC” are permitted to be made available through a portion of any electronic dissemination system designated “Public Investor” or a similar designation; and (iv) the Agent and the Joint Lead Arrangers and Bookrunners shall treat any Information Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of any electronic dissemination system not designated “Public Investor” or a similar designation.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to the LendersAgent:
(a) 7.4.1. as soon as practicable, but, but in any event not later than 90 95 days after the end of each fiscal year of the ParentBorrower and the Guarantor, the audited consolidated and consolidating balance sheets sheet of the Parent as Borrower and its Subsidiaries and the Guarantor at the end of such year, statements of cash flows, and the related audited consolidated and consolidating statements of operationsincome, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, and accompanied by an auditor's report prepared without qualification by Arthxx Xxxexxxx & Xo. or by another "Big Six" accounting firm, and any other information the Banks may need to complete a financial analysis of the Borrower, together with respect a written statement from such accountants to the consolidated financial statementseffect that they have read a copy of this Agreement, Certified by and that, in making the Accountantsexamination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Agent or the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) 7.4.2. as soon as practicable, but in any event not later than 45 days after the end of each fiscal quarter of the BorrowersBorrower (including the fourth fiscal quarter in each year), copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related statement unaudited consolidated statements of income, changes in capital and cash flowsflows for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each Borrower (the "CFO") General Partner that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
7.4.3. contemporaneously with the delivery of the financial statements referred to in clause (ca) above, a statement of all contingent liabilities of the Borrower and its Subsidiaries which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guarantees, endorsements and other contingent obligations in respect of indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
7.4.4. simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement in the form of EXHIBIT D hereto (the a "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as principal financial or accounting officer of the end General Partner in the form of the applicable period and Exhibit C hereto setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 9 and the other covenants described therein, and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
7.4.5. simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above and the Compliance Certificate referred to in subsection (d) above, a spreadsheet listing each parcel of Real Estate and its location, date of acquisition, size (square footage for office and retail assets; number of rooms for hotel/resort assets; and number of beds for behavioral healthcare facilities), occupancy level for the quarter most recently ended, cost (appraised value if acquired prior to October, 1995), rolling four quarter Net Income (actual lease payments received by the Borrower for hotel/resort assets and behavioral healthcare facilities) and for office building assets, the major tenants and percentage of gross leasable area occupied;
7.4.6. not later than 60 days following each acquisition of an interest in Real Estate by the Borrower or any of its Subsidiaries (which for the purposes of this Section 7.4(f) shall include the Investments described in Section 8.3(i)), each of the following (provided that with respect to the Investments described in Section 8.3(i), the following items shall be provided to the extent the same are reasonably available to the Borrower or its Subsidiaries): (i) a description of the property acquired, and (ii) a Compliance Certificate prepared using the financial statements of the Borrower most recently provided or required to be provided to the Banks under Section 6.4 or this Section 7.4 adjusted in the best good-faith estimate of the Borrower to give effect to such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any acquisition and demonstrating that no Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith Default with respect to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose covenants referred to take with respect theretotherein shall exist after giving effect to such acquisition;
(d) annually or at such other time as may be reasonably requested by 7.4.7. promptly after they are filed with the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or mailing thereofInternal Revenue Service, copies of all material annual federal income tax returns and amendments thereto of the Borrower, the General Partner and the Limited Partner;
7.4.8. prior to the acquisition by the Borrower of any Real Estate or interest therein costing in excess of $1,000,000.00, a financial nature filed statement of Borrower that no Default or Event of Default exists or would be caused as a result of such acquisition;
7.4.9. not later than five (5) Business Days after the Borrower receives notice of the same from either of the Rating Agencies or otherwise learns of the same, notice of the issuance of any change in the rating by either of the Rating Agencies in respect of any debt of the Borrower (including any change in an Implied Rating), together with the SEC or sent to the stockholders details thereof, and of any announcement by either of the BorrowersRating Agencies that any such rating is "under review" or that any such rating has been placed on a watch list or that any similar action has been taken by either of the Rating Agencies (collectively a "Rating Notice");
7.4.10. such financial statements and other information with respect to CBHS as shall be reasonably required by the Agent to test compliance with the covenants contained in Section 9.10; and
7.4.11. from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors' management letters, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or its Subsidiaries) as the Agent may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Crescent Real Estate Equities Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and certified without qualification by KPMG Peat Marwick LLP or by other independent certified public accountants satisfactory to the consolidated financial statementsAgent, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to as soon as practicable, but in any event within thirty (a30) and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of days after the end of each month in each fiscal year of the applicable period Borrower, unaudited monthly consolidated financial statements of the Borrower and setting forth its Subsidiaries for such month and unaudited monthly consolidating financial statements of the Borrower and its Subsidiaries for such month, each prepared in reasonable detail computations evidencing such complianceaccordance with generally accepted accounting principles, PROVIDED THAT if together with a certification by the Borrowers shall at principal financial or accounting officer of the time of issuance of such certificate have knowledge of any Default or Event of Default, Borrower that the Borrowers shall include information contained in such certificate or otherwise deliver forthwith to financial statements fairly presents the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies financial condition of the financial statements, financial projections, annual budget, variance reports Borrower and business plan concerning its Subsidiaries on the Borrowers in substantially the same form in which such information is supplied date thereof (subject to the boards of directors of the Borrowersyear-end adjustments);
(e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of the Borrowers; and
Appears in 1 contract
Samples: Revolving Credit Agreement (National Auto Finance Co Inc)
Financial Statements, Certificates and Information. The Borrowers BGI will deliver to the LendersAdministrative Agent:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrowers, the consolidated balance sheet of BGI and consolidating balance sheets of the Parent its Subsidiaries as at the end last day of such fiscal year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow for such fiscal year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP and, with respect (except as required by a change in GAAP or as concurred to the consolidated financial statements, Certified by the Accountants), and certified, without qualification and without an expression of uncertainty as to the ability of BGI or any of its Subsidiaries to continue as going concerns, by the Accountants, together with a written statement from the Accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 sixty (60) days after the end of each of the fiscal quarter quarters of the Borrowers, copies of the unaudited consolidated balance sheet of BGI and consolidating balance sheets and statement of operations of the Parent its Subsidiaries as at the end last day of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow for the portion of the Borrowers’ fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of each Borrower (the "CFO") BGI that the consolidated information contained in such financial statements are prepared in accordance with GAAP fairly presents the financial position of BGI and fairly present the consolidated financial condition of the Borrowers as at the close of business its Subsidiaries on the date thereof (subject to the absence of footnotes and year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of BGI in substantially the form of EXHIBIT D Exhibit C hereto (the "a “Compliance Certificate"”) certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in §10 and (if applicable) reconciliations to reflect changes in GAAP since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoBalance Sheet Date;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of any of the Borrowers;
(e) upon request of the Administrative Agent, BGI’s annual business plan; and
(f) from time to time such other financial data and information (including accountants’ management letters) as the Administrative Agent may reasonably request.
Appears in 1 contract
Samples: Senior Unsecured Revolving Credit Agreement (Barnes Group Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such yearyear and, statements with respect to the consolidated balance sheet of cash flowsthe Borrower and its Subsidiaries, and the related consolidated and consolidating statements of operations, each setting forth in comparative form the figures for the previous fiscal year, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income, all such consolidated and consolidating financial statements to be in reasonable detail, detail and prepared in accordance with GAAP andGAAP, and with respect to the consolidated financial statements, Certified setting forth in comparative form the figures for the previous fiscal year, and audited, without qualification and without an expression of uncertainty as to the ability of the Borrower or any of its Subsidiaries to continue as going concerns, by Deloitte & Touche LLP or by other similar independent certified public accountants of nationally recognized standing, together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarterquarter and, subject with respect to year end adjustmentsthe unaudited consolidated balance sheet of the Borrower and its Subsidiaries, setting forth in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, and with respect to the consolidated statements, setting forth in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year, together with a certification by the principal financial Chief Financial Officer, Chief Accounting Officer or accounting officer the Treasurer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) adjustments and the results addition of operations for the period then endedfootnotes);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the Chief Financial Officer, Chief Accounting Officer or the Treasurer of the Borrower in substantially the form of EXHIBIT D Exhibit C hereto (the a "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if compliance with the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include covenants contained in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoSection 9;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a filings containing financial nature statements or proxy statements filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersBorrower;
(e) from time to time such other financial data and information (including any and all financial statements and other supporting financial documents and schedules including copies of any accountant's management letters with respect to the business, financial condition and other affairs 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 this Section 7.3 (to the extent any such documents are included in materials otherwise filed with the Securities and Exchange Commission) may be delivered electronically; andprovided that the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by Section 7.3(c) to the Administrative Agent.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will -------------------------------------------------- deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and certified without qualification by a "Big Six" accounting firm or by other independent certified public accountants satisfactory to the consolidated financial statementsAgent, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided -------- that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 (i) sixty (60) days after the fiscal quarter ending December 31, 1997; and (iv) forty-five (45) days after the end of each fiscal quarter of the Borrowersother fiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of the Borrower, unaudited monthly consolidated financial statements of the Borrower and its Subsidiaries for such month and unaudited monthly consolidating financial statements of the Borrower and its Subsidiaries for such month, each prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial condition of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit C hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are and setting ------- - forth in reasonable detail computations evidencing compliance with the covenants contained in ss.ss.7(S)9 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date; provided, 8 and 9 hereofhowever, as the Borrower shall not be required to deliver a -------- ------- Compliance Certificate for the fiscal quarter ending December 31 of each year until ninety (90) days after the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowersfiscal quarter;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersBorrower;
(f) from time to time upon request of the Agent, projections of the Borrower and its Subsidiaries updating those projections delivered to the Banks and referred to in (S)6.4.3 or, if applicable, updating any later such projections delivered in response to a request pursuant to this (S)7.4(f);
(g) from time to time such other financial data and information (including accountants' management letters) as the Agent or any Bank may reasonably request; and
(h) by not later than November 30, 1997, a consolidated balance sheet of the Borrower and its Subsidiaries as at October 31, 1997.
Appears in 1 contract
Samples: Revolving Credit Agreement (Answer Think Consulting Group Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated and consolidating audited balance sheets of Borrower and of the Parent as Company at the end of such year, and the related audited statements of operations and statements of cash flows, and the related consolidated and consolidating statements of operationsflows for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGenerally Accepted Accounting Principles on a consolidated basis including Borrower and the Related Companies, with respect and accompanied by an auditor's report prepared without qualification by Ernst & Young or another "Big Four" accounting firm, or, subject to the consolidated financial statementsAgent's approval granted or denied in its sole and absolute discretion, Certified by the Accountantsanother certified public accounting firm of recognized national standing;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfirst three (3) fiscal quarters of Borrower, copies of the consolidated and consolidating unaudited balance sheets of Borrower and statement of operations of the Parent Company as at the end of such quarter, subject to year end adjustments, and the related statement unaudited statements of cash flowsoperations for the portion of Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPGenerally Accepted Accounting Principles, together with a certification by the principal financial or accounting officer of each Borrower (the "CFO") Company that the consolidated information contained in such financial statements are prepared in accordance with GAAP fairly presents the financial position of Borrower and fairly present the consolidated financial condition of the Borrowers as at the close of business Company on the date thereof (subject to year-end adjustments) ); provided, however, that for so long as Borrower and the results Company are filing form 10-Q with the SEC, the delivery of operations for the period then endeda copy thereof pursuant to paragraph (e) of this § 7.4 shall be deemed to satisfy this paragraph (b);
(c) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of each of the first three (3) fiscal quarters and not later than ninety (90) days after the end of the last fiscal quarter of each fiscal year of Borrower, copies of a statement of the Net Operating Income for such fiscal quarter for the Unencumbered Assets, prepared on a basis consistent with the statements furnished pursuant to § 6.4(c), and certified by a Responsible Officer of the Company and, at the time of the annual financial statements referred to in subsection (a) above, and at the time of quarterly financial statements referred to in subsection (b) above if requested by Agent, a consolidating statement setting forth the Net Operating Income for such fiscal quarter for each Unencumbered Asset listed by address;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement in the form of EXHIBIT D Exhibit C hereto (the "Compliance Certificate") certified signed by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as a Responsible Officer of the end Company (on behalf of the applicable period Borrower) and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained herein and (if applicable) reconciliations to reflect changes in Generally Accepted Accounting Principles since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) contemporaneously withas soon as practicable, or but in any event not later than ninety (90) days after the end of each fiscal year of the Company, copies of the Form 10-K statement filed with the Securities and Exchange Commission ("SEC") for such fiscal year, and as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter, copies of the Form 10-Q statement filed with the SEC for such fiscal quarter, provided that in either case if the SEC has granted an extension for the filing of such statements, Borrower shall deliver such statements to Agent simultaneously with the filing thereof with the SEC;
(f) promptly following, following the filing or mailing thereof, copies of all other material of a financial nature filed with the SEC or sent to the stockholders shareholders of the Borrowers; andCompany or to the limited partners of Borrower and copies of all corporate press releases promptly upon the issuance thereof;
(g) from time to time such other financial data and information as Agent may reasonably request including, without limitation, financial statements of any Unconsolidated Entities;
(h) from time to time such environmental assessment reports as to the Unencumbered Assets as Agent may reasonably request.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Sl Green Realty Corp)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to the LendersLender:
(a) as soon as practicable, but, but in any event not later than 90 120 days after the end of each fiscal year of the ParentBorrower, the audited consolidated and consolidating balance sheets sheet of the Parent as Borrower at the end of such year, statements of cash flows, and the related audited consolidated and consolidating statements of operationsincome, changes in capital and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and accompanied by an auditor's report prepared without qualification by a "Big Six" accounting firm or another accounting firm reasonably acceptable to the consolidated Lender, and any other information the Lender may reasonably require to complete a financial statements, Certified by analysis of the AccountantsBorrower;
(b) as soon as practicable, but in any event not later than 45 days after the end of each fiscal quarter of the BorrowersBorrower (including the fourth fiscal quarter in each year), copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Borrower as at the end of such quarter, subject to year end adjustments, and the related statement unaudited consolidated statements of income, changes in capital and cash flowsflows for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended;.)
(c) simultaneously not later than ______ days prior to the beginning of each respective calendar year, the budget ("Budget") for the next calendar year. The Budget shall be in form reasonably satisfactory to the Lender and shall be submitted to the Lender together with the delivery a narrative description of the financial statements referred to in (a) assumptions upon which the Budget is based and (b) above, a statement in such other information as the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;Lender may request; and
(d) annually or at from time to time such other time as may be reasonably requested by financial data and information in the Administrative Agent, copies possession of the financial statementsBorrower (including without limitation auditors' management letters, financial projectionsmarket comparable studies, annual budget, variance property inspection and environmental reports and business plan concerning information as to zoning and other legal and regulatory changes affecting the Borrowers in substantially Borrower or its Subsidiaries) as the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of the Borrowers; andLender may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated and consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, with respect and certified, without qualification and without an expression of uncertainty as to the consolidated financial statementsability of the Borrower or any of its Subsidiaries to continue as going concerns, Certified by PricewaterhouseCoopers LLP or by other independent certified public accountants reasonably satisfactory to the AccountantsAdministrative Agent, together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries, and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit C hereto (the a "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in (S)10 and (if applicable) reconciliations to reflect changes in GAAP since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoBalance Sheet Date;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies within five (5) days of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersBorrower;
(e) from time to time upon request of the Administrative Agent, projections of the Borrower and its Subsidiaries updating those projections delivered to the Lenders and referred to in (S)7.4.3 or, if applicable, updating any later such projections delivered in response to a request pursuant to this (S)8.4(e); and
(f) from time to time such other financial data and information (including accountants, management letters) as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated and consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP generally accepted accounting principles, and certified without qualification by Coopers & Lxxxxxx LLP or by other independent certified public accountants satisfactory to the Agent, together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default; and, with respect to provided further that the consolidated financial statements, Certified information required by this paragraph may be satisfied by delivery by the AccountantsBorrower within such ninety (90) day period of the Borrower's Form 10-K for such fiscal year;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments); provided that the information required by this paragraph may be satisfied by the Borrower within such forty-five (45) and day period of the results of operations Borrower's Form 10-Q for the period then endedsuch fiscal quarter;
(c) [Reserved]
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit E hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in ss.11 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all publicly available material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersBorrower;
(f) if any Revolving Credit Loans are outstanding or requested, within twenty (20) days after the end of each calendar month or at such earlier time as the Agent may reasonably request, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month or other date so requested by the Agent;
(g) if any Revolving Credit Loans are outstanding or requested, within twenty (20) days after the end of each calendar month, an Accounts Receivable aging report; and
(h) from time to time such other financial data and information (including accountants, management letters) as the Agent or any Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Marcam Corp)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and certified without qualification by Arthxx Xxxexxxx XXX or by other independent certified public accountants satisfactory to the consolidated financial statementsAgent, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; PROVIDED that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D C hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in [Section]10 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoBalance Sheet Date;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature nature, all reports, proxy statements and notices filed any of the Transaction Parties with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersBorrower;
(e) from time to time upon request of the Agent, projections of the Borrower and its Subsidiaries updating those projections delivered to the Banks and referred to in [Section]7.4.2 or, if applicable, updating any later such projections delivered in response to a request pursuant to this [Section]8.4(e); and
(f) from time to time such other financial data and information (including accountants management letters) regarding the financial and other affairs of the Borrower and its Subsidiaries as the Agent or any Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Hadco Acquisition Corp)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 one hundred and twenty (120) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries, and the consolidating balance sheets of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP generally accepted accounting principles, and, with respect in the case of all consolidated statements, certified without qualification by Arthxx Xxxexxxx XXX or Katz Xxxper & Millxx xx by other independent certified public accountants satisfactory to the consolidated financial statementsAgents, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the BorrowersBorrower commencing with the fiscal quarter ending August 31, 2000, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries, and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's and Subsidiaries', fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries, on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially 73 -66- the form of EXHIBIT D Exhibit E hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 11 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date; and simultaneously with the delivery of the fiscal year-end financial statements referred to in subsection (a) above, a detailed statement of operating expenses incurred by Emmis International Corporation for such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include fiscal year in such certificate or otherwise deliver forthwith form and substance satisfactory to the Lenders a certificate specifying Administrative Agent and certified by the nature and period principal financial or accounting officer of existence thereof and what action the Borrowers propose to take with respect theretoBorrower;
(d) annually or at promptly upon completion thereof and in any event no later than thirty (30) days after the beginning of each fiscal year of the Borrower, the Borrower's annual operating budget in the form of consolidated and consolidating (on a Station-by-Station basis) financial projections for each such other time fiscal year prepared on a quarterly basis and setting forth projected operating results for each quarter in such fiscal year and for the fiscal year as may be reasonably requested a whole, including projections of operating cash flow, together with a statement of reasonable assumptions made by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports Borrower in preparing such budgets and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowersprojections and explanations attached thereto;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies (i) of all material of a financial nature filed with the SEC Securities and Exchange Commission (including any registration statements) or sent to the stockholders of the BorrowersBorrower and (ii) any periodic or special reports of a material nature filed with the FCC and relating to any Station owned or operated by the Borrower or any of its Subsidiaries;
(f) from time to time upon the request therefor of the Agents, projections of the Borrower and its Subsidiaries, updating the Projections or, if applicable, updating any later such projections delivered in response to a request pursuant to this Section 9.4(f);
(g) from time to time such other financial data and information (including accountants' management letters) as the Administrative Agent or any Bank may reasonably request; and
(h) promptly upon their becoming available, copies of all annual appraisals of the then current business value of the Borrower and its Subsidiaries, other than Excluded Subsidiaries, conducted, commissioned or received by the Borrower, whether prepared by an independent appraiser or otherwise.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver and cause BPI to (and BPI will) deliver (as applicable) to the LendersAgent:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBPI, the audited consolidated balance sheet of BPI and consolidating balance sheets of the Parent as its Subsidiaries at the end of such year, statements of cash flows, and the related audited consolidated and consolidating statements of operationsincome, changes in shareholder’s equity and cash flows for the year then ended, in each case, setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP which may be provided by inclusion in the Form 10-K of BPI filed with the SEC for such period provided pursuant to clause (g) below), and, in each case, accompanied by an auditor’s report prepared without qualification by the Accountants other than a qualification solely with respect to internal controls over financial reporting as required under Section 404 of the consolidated financial statements, Certified by the AccountantsSarbanes Oxley Act;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each of its March 31, June 30 and September 30 fiscal quarter of the Borrowersquarters, copies of the unaudited consolidated balance sheet of BPI and consolidating balance sheets and statement of operations of the Parent its Subsidiaries, as at the end of such quarter, subject to year end adjustments, and the related statement unaudited consolidated statements of income, changes in shareholders’ equity and cash flowsflows for the portion of BPI’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPGAAP (which may be provided by inclusion in the Form 10-Q of BPI filed with the SEC for such period provided pursuant to clause (g) below), together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") and BPI that the consolidated information contained in such financial statements are prepared in accordance with GAAP fairly presents the financial position of BPI and fairly present the consolidated financial condition of the Borrowers as at the close of business its Subsidiaries on the date thereof (subject to year-end adjustments) and the results adjustments none of operations for the period then endedwhich shall be materially adverse);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, (i) a statement Compliance Certificate in the form of EXHIBIT D Exhibit C-2 hereto signed by an Authorized Officer, which Compliance Certificate and each other Compliance Certificate required pursuant to the terms of this Agreement shall be delivered by electronic communication, including fax or email, unless the Agent or a Bank requests executed originals, and each such Compliance Certificate so delivered shall be deemed to be an original authentic counterpart thereof for all purposes, and (if applicable) reconciliations to reflect changes in GAAP since the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance date of such certificate have knowledge financial statements and (ii) a quarterly worksheet in the form of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoExhibit C-2A;
(d) annually promptly as they become available, a copy of each report (including any so-called management letters) submitted to the Borrower or at such other time as may be reasonably requested BPI by the Administrative Agent, copies Accountants in connection with each annual audit of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors books of the BorrowersBorrower or BPI by such Accountants or in connection with any interim audit thereof pertaining to any phase of the business of the Borrower or BPI;
(e) contemporaneously withwith (or promptly after) the filing or mailing thereof, copies of all material of a financial nature sent to the holders of any Indebtedness of the Borrower (other than the Loans) for borrowed money, to the extent that the information or disclosure contained in such material refers to or could reasonably be expected to have a material adverse effect on the business, assets, financial condition or prospects, or promptly followingoperations of BPLP, BPI or, taken as a whole, the BP Group;
(f) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of BPI;
(g) as soon as practicable, but in any event not later than ninety (90) days after the Borrowersend of each fiscal year of BPI, copies of the Form 10-K statement filed by BPI with the SEC for such fiscal year, and as soon as practicable, but in any event not later than fifty (50) days after the end of each fiscal quarter of BPI copies of the Form 10-Q statement filed by BPI with the SEC for such fiscal quarter, provided that, in either case, if the SEC has granted an extension for the filing of such statements, BPI shall deliver such statements to the Agent within ten (10) days after the filing thereof with the SEC;
(h) from time to time such other financial data and information about the Borrower, BPI, their respective Subsidiaries, the Real Estate Assets and the Partially-Owned Entities as the Agent or any Bank (through the Agent) may reasonably request, including, without limitation, complete rent rolls, existing environmental reports, and insurance certificates with respect to the Real Estate Assets;
(i) Intentionally Deleted; and
(j) as soon as practicable, but in any event not later than ninety (90) days after the end of the fiscal year of BPLP, the audited balance sheet of BPLP at the end of each such year, and the related audited statements of income, changes in partners’ capital and cash flows for the year then ended, in each case setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of BPLP that the information contained in such financial statements fairly presents the financial position of BPLP on the date thereof, and as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the March 31, June 30 and September 30 fiscal quarters of BPLP, the unaudited balance sheet of BPLP at the end of each such quarter, and the related unaudited statements of income, changes in partners’ capital and cash flows for the quarter then ended, in each case setting forth in comparative form the figures for the previous fiscal quarter and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of BPLP that the information contained in such financial statements fairly presents the financial position of BPLP on the date thereof (subject to year-end adjustments none of which shall be materially adverse). Notwithstanding any provision of this §8.4, for so long as BPI is publically traded on the New York Stock Exchange, the Borrower shall be deemed to have satisfied its obligations under subsections (a), (b), (f), (g) and (j) of this §8.4 by timely filing its Form 10-Q and Form 10-K with the SEC for each applicable period, provided that, with respect to subsections (a) and (b) above, the Borrower has delivered to the Agent within the time periods required therefor and referred to in subsections (a) and (b), the statement required by subsection (c) above.
Appears in 1 contract
Samples: Revolving Credit Agreement (Boston Properties LTD Partnership)
Financial Statements, Certificates and Information. The Borrowers Borrower will -------------------------------------------------- deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, (i) the consolidated and consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP generally accepted accounting principles, certified without qualification by a nationally recognized independent certified public accounting firm that is currently known as a "Big Five" accounting firm or by another independent certified public accounting firm satisfactory to the Agent, together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any -50- such Default or Event of Default; provided that such accountants shall not -------- be liable to the Banks for failure to obtain knowledge of any Default or Event of Default; and, with respect to provided further that the consolidated financial statements, Certified information ---------------- required by this paragraph may be satisfied by delivery by the AccountantsBorrower within such ninety (90) day period of the Borrower's Form 10-K for such fiscal year and (ii) the unaudited Consolidating balance sheet as at the end of such year and the related unaudited Consolidating statement of income for such year, each setting forth in comparative form the figures for the previous fiscal year and all such unaudited Consolidating statements to be in reasonable detail and prepared in accordance with generally accepted accounting principles;
(b) as soon as practicable, but in any event not later than 45 forty- five (45) days after the end of each fiscal quarter of the Borrowers, copies fiscal quarters of the Borrower, (i) the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries as at the end of such quarter, subject to year end adjustments, quarter and the related unaudited consolidated statement of income and unaudited consolidated statement of cash flowsflow for the portion of the Borrower's fiscal year then elapsed, and (ii) the unaudited Consolidating balance sheet as at the end of such quarter and the related unaudited Consolidating statement of income for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments); provided that the consolidated information required by this paragraph may -------- be satisfied by the Borrower within such forty-five (45) and day period of the results of operations Borrower's Form 10-Q for the period then endedsuch fiscal quarter;
(c) as soon as practicable, but in any event no later than ninety (90) days after the end of each fiscal year of the Borrower, a management prepared budget for the next fiscal year of the Borrower.
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit E hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are and setting forth in reasonable detail ------- - computations evidencing compliance with the covenants contained in ss.ss.7, 8 (S)11 and 9 hereof, as of (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) contemporaneously withas soon as practicable, or promptly following, but in any event not later than forty- five (45) days after the filing or mailing thereofend of any fiscal quarter, copies of all publicly available material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersBorrower during such fiscal quarter;
(f) if any Revolving Credit Loans are outstanding or requested, within twenty (20) days after the end of each calendar month or at such earlier time as the Agent may reasonably request, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month or other date so requested by the Agent;
(g) if any Revolving Credit Loans are outstanding or requested, within twenty (20) days after the end of each calendar month, an Accounts Receivable aging report; and
(h) from time to time such other financial data and information (including accountants management letters) as the Agent or any Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Mapics Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver or cause to be delivered to the LendersAgent with sufficient copies for each of the Banks:
(a) as soon as practicable, but, but in any event not later than 90 days after the end of each fiscal year of the ParentBorrower, the audited consolidated and consolidating balance sheets sheet of the Parent as Borrower at the end of such year, statements of cash flows, and the related audited consolidated and consolidating statements of operationsincome, changes in shareholders' equity and cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year, year (other than the fiscal year ending prior to the Closing Date for which such statements of Borrower were not separately prepared) and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, and accompanied by an auditor's report prepared without qualification by Ernst & Young LLP or by another "Big Six" accounting firm, together with respect the unaudited annual operating statement of each Mortgaged Property and the Mezzanine Property (which statement shall also be reconciled to the consolidated budget for the Mortgaged Property and the Mezzanine Property), together with a certification by Borrower's chief financial statementsor chief accounting officer that the information contained in such statement fairly presents the operations of the Mortgaged Property and the Mezzanine Property for such period, Certified by and any other information the AccountantsBanks may reasonably need to complete a financial analysis of the Borrower;
(b) as soon as practicable, but in any event not later than 45 days after the end of each fiscal quarter of the BorrowersBorrower (including the fourth quarter), copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, as at of the end of such quarter, subject to year end adjustments, and the related unaudited consolidated statements of income, changes in shareholders' equity and cash flows for the portion of the Borrower's fiscal year then elapsed, and the unaudited operating statement of cash flowsfor the Mortgaged Property and the Mezzanine Property for such quarter and year- to-date (which statement shall also be reconciled to the budget for the Mortgaged Property and the Mezzanine Property), all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at Borrower and its Subsidiaries, and the close operations of business the Mortgaged Property and the Mezzanine Property on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) as soon as practicable, but in any event not later than 45 days after the end of each fiscal quarter of the Borrower (including the fourth fiscal quarter in each year), copies of a consolidated statement of Operating Cash Flow for such fiscal quarter and year-to-date for the Borrower and its Subsidiaries and a statement of Net Operating Income for such fiscal quarter and year-to-date for each of the Mortgaged Properties and the Mezzanine Properties, prepared in a manner reasonable satisfactory to the Agent, together with a certification by the Borrower's chief financial or chief accounting officer that the information contained in such statement fairly presents the Operating Cash Flow of the Borrower and its Subsidiaries and the Net Operating Income of the Mortgaged Property and the Mezzanine Property for such period;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement in the form of EXHIBIT D hereto (the a "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as principal financial or accounting officer of the end Borrower in the form of the applicable period and Exhibit C hereto setting forth in reasonable detail computations evidencing such compliancecompliance with the covenants contained in Section 9 and the other covenants described therein, PROVIDED THAT and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Borrowers shall at Balance Sheet Date;
(e) concurrently with the time delivery of issuance the financial statements described in subsections (b) and (c) above, a certificate signed by the President or Chief Financial Officer of such certificate have knowledge of the Borrower to the effect that, having read this Agreement, and based upon an examination which they deem sufficient to enable them to make an informed statement, there does not exist any Default or Event of Default, the Borrowers shall include in or if such certificate Default or otherwise deliver forthwith to the Lenders a certificate Event of Default has occurred, specifying the nature and period of existence thereof and what action the Borrowers propose to take facts with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(ef) contemporaneously withwith the filing, mailing or promptly following, the filing or mailing releasing thereof, copies of all press releases and all material of a financial nature filed with the SEC SEC, if applicable, or sent to the stockholders all of the Borrowersmembers of the Borrower;
(g) as soon as practicable but in any event not later than 45 days after the end of each fiscal quarter of the Borrower (including the fourth fiscal quarter in each year), updated Rent Rolls with respect to the Mortgaged Property and the Mezzanine Property and a summary of each Rent Roll in form reasonably satisfactory to the Agent;
(h) not later than 30 days following each acquisition of an interest in Real Estate by the Borrower or any of its Subsidiaries (which for the purposes of this Section 7.4(h) shall include the Investments described in Section 8.3(k)), each of the following: (i) a description of the interest acquired, (ii) an environmental site assessment prepared by an Environmental Engineer stating no material qualification with respect to such Real Estate or property, and (iii) a Compliance Certificate prepared using the financial statements of the Borrower most recently provided or required to be provided to the Banks under Section 6.4 or this Section 7.4 adjusted in the best good-faith estimate of the Borrower to give effect to such acquisition and demonstrating that no Default or Event of Default with respect to the covenants referred to therein shall exist after giving effect to such acquisition;
(i) as soon as practicable, but in any event not later than 30 days prior to the beginning of each calendar year, the annual operating budget for each Mortgaged Property, in form and substance satisfactory to the Majority Banks, and a copy of each budget that is submitted by WASH to the Mezzanine Mortgagee for approval by the Mezzanine Mortgagee pursuant to the Mezzanine Mortgage Loan Documents, or any revision or amendment thereof, as the same are submitted by WASH to the Mezzanine Mortgagee pursuant to the Mezzanine Mortgage Loan Documents;
(j) promptly after they are filed with the Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the Borrower and the Guarantor;
(k) not later than 45 days after the end of each fiscal quarter of the Borrower (including the fourth fiscal quarter in each year), the market comparable study conducted by the Borrower's internal staff or its property managers, and at other times copies of such market studies relating to the Mortgaged Property and Mezzanine Property as are from time to time prepared by or on behalf of the Borrower;
(l) to the extent not otherwise provided to Agent hereunder, a copy of each statement, report, Rent Roll, tax return or other matter required to be delivered to the Mortgagee or the Mezzanine Mortgagee pursuant to the Mortgage Loan Documents and the Mezzanine Mortgage Loan Documents, respectively, as and when the same is required to be delivered to the Mortgagee or the Mezzanine Mortgagee pursuant to the terms thereof;
(m) not later than 45 days after the end of each fiscal quarter (including the fourth quarter), a certification by the principal financial or accounting officer of the Borrower to the effect that to such Person's knowledge no "Default" or "Event of Default" exists under the Mortgage Loan Documents or the Mezzanine Mortgage Loan Documents, or if such Person shall obtain knowledge of any then existing "Default" or "Event of Default" under the Mortgage Loan Documents or the Mezzanine Mortgage Loan Documents, they shall disclose in such statement such "Defaults" or "Events of Default";
(n) not later than 45 days after the end of each fiscal quarter (including the fourth quarter), a copy of each Lease entered into by or on behalf of the Property Owner or WASH during such quarter;
(o) promptly upon issuance of the same by any of the Property Owner, the Borrower or any of its Subsidiaries, duplicate copies of any and all notices of any proposed sale or other disposition, or financing or refinancing, of any interest of or in the Property Owner, the Mortgaged Property, the Collateral or any collateral for the Mortgage Loan, together with all material documents related thereto and a description of the material terms thereof;
(p) duplicate copies of any and all notices of default by or under the Property Owner Organizational Agreements or of any failure by any Persons to perform any obligation under such agreements;
(q) not later than 45 days after the end of each calendar year, evidence that the Property Owner has taken all actions required by the state in which it is organized to remain in good standing;
(r) duplicate copies of any and all appraisals or updates thereof that are required to be delivered by the Property Owner or WASH to the Mortgagee or Mezzanine Mortgagee, as applicable, pursuant to any of the Mortgage Loan Documents or the Mezzanine Mortgage Loan Documents as and when the same are required to be delivered to the Mortgagee or Mezzanine Mortgagee, as applicable;
(s) duplicate copies of any and all notices sent by WASH to any Rating Agency, or sent by a Rating Agency to WASH; and
(t) from time to time such other financial data and information in the possession of or reasonably obtainable by the Borrower, any of its Subsidiaries or the Property Owner relating to the Borrower, the Property Owner, WASH, the Guarantor, the Mortgaged Property, the Mezzanine Property or the Collateral (including without limitation auditors' management letters, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower, any of its Subsidiaries, the Property Owner or WASH) as the Agent may reasonably request.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Wellsford Real Properties Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will -------------------------------------------------- deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated and consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP generally accepted accounting principles, and certified without qualification by Coopers & Xxxxxxx LLP or by other independent certified public accountants satisfactory to the Agent, together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure -------- to obtain knowledge of any Default or Event of Default; and, with respect to provided -------- further that the consolidated financial statements, Certified information required by this paragraph may be satisfied by ------- delivery by the AccountantsBorrower within such ninety (90) day period of the Borrower's Form 10-K for such fiscal year;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments); provided that the information required by this paragraph may be satisfied -------- by the Borrower within such forty-five (45) and day period of the results of operations Borrower's Form 10-Q for the period then endedsuch fiscal quarter;
(c) [Reserved]
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit E hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are and setting forth in reasonable detail ------- - computations evidencing compliance with the covenants contained in ss.ss.7, 8 (S)11 and 9 hereof, as of (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all publicly available material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersBorrower;
(f) if any Revolving Credit Loans are outstanding or requested, within twenty (20) days after the end of each calendar month or at such earlier time as the Agent may reasonably request, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month or other date so requested by the Agent;
(g) if any Revolving Credit Loans are outstanding or requested, within twenty (20) days after the end of each calendar month, an Accounts Receivable aging report; and
(h) from time to time such other financial data and information (including accountants, management letters) as the Agent or any Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Mapics Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and certified without qualification by Xxxxxx Xxxxxxxx LLP or by other independent certified public accountants reasonably satisfactory to the consolidated Agent, together with a written statement from such accountants to the effect that they have read a copy (or the relevant portions thereof necessary to give such an opinion, including without limitation the financial statementscovenants contained in §11 hereof) of this Credit Agreement, Certified by and that, in making the Accountantsexamination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of the Borrower, unaudited monthly consolidated financial statements of the Borrower and its Subsidiaries for such month and unaudited monthly consolidating financial statements of the Borrower and its Subsidiaries for such month, each prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial condition of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT Exhibit D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in and setting forthin reasonable detail computations evidencing compliance with the covenants contained in ss.ss.7, 8 §11 and 9 hereof, as of (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent Securities and Exchange Commission;
(f) from time to time upon request of the Agent, projections of the Borrower and its Subsidiaries updating those projections delivered to the stockholders of the BorrowersBanks and referred to in §8.4.2 or, if applicable, updating any later such projections delivered in response to a request pursuant to this §9.4(f); and
(g) from time to time such other financial data and information (including accountants, management letters) as the Agent or any Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Fargo Electronics Inc)
Financial Statements, Certificates and Information. The Borrowers will deliver to the LendersAdministrative Agent:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each of its fiscal year years (or such shorter period as is 15 days greater than the period applicable to the filing of LSI’s Annual Report on Form 10-K with the ParentSEC regardless of whether LSI is subject to the filing requirements thereof):
(i) in the case of LSLP, if prepared, the audited consolidated balance sheet of LSLP and consolidating balance sheets of the Parent as its Subsidiaries at the end of such year, and the related audited consolidated statements of operations, funds available for distribution and cash flowsflows for the year then ended, in each case (except for cash flow statements) with supplemental consolidating schedules provided by LSLP; and
(ii) in the case of LSI, the audited consolidated and consolidating (for Subsidiaries which own Real Estate) balance sheet of LSI and its Subsidiaries (including, without limitation, LSLP and its Subsidiaries) at the end of such year, and the related audited consolidated and consolidating (for Subsidiaries which own Real Estate) statements of operations, cash flows and shareholders’ equity for the year then ended; each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP GAAP, and, with respect to in each case, accompanied by (x) a certification by the consolidated principal financial statementsofficer of LSLP or LSI, Certified as applicable, that the information contained in such financial statements fairly presents the financial position of LSLP or LSI (as the case may be) and its Subsidiaries on the date thereof and (y) an auditor’s report prepared without qualification by the Accountants;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each of its fiscal quarters (commencing with the fiscal quarter ending September 30, 2018) (or such shorter period as is 15 days greater than the period applicable to the filing of LSI’s Quarterly Report on Form 10-Q with the BorrowersSEC regardless of whether LSI is subject to the filing requirements thereof):
(i) in the case of LSLP, if prepared, copies of the unaudited consolidated balance sheet of LSLP and consolidating balance sheets and statement of operations of the Parent its Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related statement unaudited consolidated statements of operations, funds available for distribution and cash flowsflows for the portion of LSLP’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to cash flow statements) provided by LSLP; and
(ii) in the case of LSI, copies of the unaudited consolidated and consolidating (for Subsidiaries which own Real Estate) balance sheet of LSI and its Subsidiaries (including, without limitation, LSLP and its Subsidiaries) as at the end of such quarter, and the related unaudited consolidated and consolidating (for Subsidiaries which own Real Estate) statements of operations and cash flows for the portion of LSI’s fiscal year then elapsed; Setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of each Borrower (the "CFO") LSLP or LSI, as applicable, that the consolidated information contained in such financial statements are prepared in accordance with GAAP fairly presents the financial position of LSLP or LSI (as the case may be) and fairly present the consolidated financial condition of the Borrowers as at the close of business its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement in the form of EXHIBIT D hereto (Exhibit D-2, or Exhibit D-3, as the "Compliance Certificate") certified case may be, signed by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereofchief financial officer of LSLP or LSI, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since June 30, 2018; and, in the case of the end of the applicable period and LSI, setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if compliance with the Borrowers shall at the time covenants contained in §10 hereof and a list of issuance all Excluded Subsidiaries as of such certificate have knowledge date and including a description of any Default or Event of Default, the Borrowers shall include in each such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature Excluded Subsidiary’s Real Estate and period of existence thereof and what action the Borrowers propose to take with respect theretoIndebtedness;
(d) annually promptly as they become available, a copy of each report (including any so-called management letters) submitted to any Borrower or at such other time as may be reasonably requested any Guarantor or any of their respective subsidiaries by the Administrative Agent, copies Accountants in connection with each annual audit of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers books of any Borrower or any Guarantor or such subsidiary by such Accountants or in substantially the same form in which such information is supplied connection with any interim audit thereof pertaining to the boards of directors any phase of the Borrowersbusiness of any Borrower or any Guarantor or any such subsidiary;
(e) contemporaneously withwith the filing or mailing thereof, copies of all material of a financial nature sent to the holders of any Indebtedness of any Borrower, any Guarantor or promptly followingany Subsidiary (other than the Loans) for borrowed money, to the extent that the information or disclosure contained in such material refers to or could reasonably be expected to have a Material Adverse Effect;
(f) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of LSI;
(g) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of LSI, copies of the Form 10-K statement filed by LSI with the SEC for such fiscal year, and as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter of LSI, copies of the Form 10-Q statement filed by LSI with the SEC for such fiscal quarter;
(h) within 30 days after the end of each fiscal year of LSI and LSLP, a five‑year capital plan of LSLP and its Subsidiaries;
(i) (i) at or promptly after any time at which the Borrowers or any Subsidiary becomes subject to the Beneficial Ownership Regulation, a completed Beneficial Ownership Certifications in form and substance acceptable to the Administrative Agent and (ii) promptly after an officer of the Borrowers obtains knowledge of any change in the information provided in any Beneficial Ownership Certification that would result in a change to the list of beneficial owners identified in parts (c) or (d) of such certification; and
(j) from time to time such other financial data and information about the Borrowers, the Guarantors, their respective Subsidiaries, the Real Estate and the Partially-Owned Entities which is prepared by such Person in the normal course of its business or is required for securities and tax law compliance as the Administrative Agent or any Lender may reasonably request, including without limitation occupancy information and insurance certificates with respect to the Real Estate (including the Unencumbered Properties) and tax returns. Financial statements and opinions of independent certified public accountants pursuant to this §8.4 shall be deemed to have been delivered if the Borrower Representative satisfies any of the following requirements with respect thereto:
(i) the Borrower Representative shall have timely filed such Form 10-Q or Form 10-K, satisfying the requirements of §8.4(a) or §8.4(b), as the case may be, with the SEC on EXXXX;
(ii) such financial statements satisfying the requirements of §8.4(a) or §8.4(b) are timely posted by or on behalf of the Borrower Representative on IntraLinks or SyndTrak or on any other similar website to which each Lender has free access; andor
(iii) Borrower Representative shall have filed any of the items referred to in §8.4(g) with the SEC on EXXXX and shall have made such items available on its home page on the internet or on IntraLinks or SyndTrak or on any other similar website to which each Lender has free access.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Life Storage Lp)
Financial Statements, Certificates and Information. The Borrowers Guarantor and the Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentGuarantor and the Borrower, the consolidated and consolidating balance sheets sheet of the Parent Guarantor and its Subsidiaries as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and certified without qualification by Arthxx Xxxexxxx XXX or by other independent certified public accountants reasonably satisfactory to the consolidated financial statementsAgent, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; PROVIDED that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfirst three fiscal quarters of the Guarantor and the Borrower in any fiscal year of the Guarantor and the Borrower, copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Guarantor and its Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow for the portion of the Guarantor's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Guarantor and its Subsidiaries on the date thereof (subject to year-end adjustments) and ), which statements shall set forth in comparative form the results of operations figures from the projections for such quarter most recently delivered to the period then endedBanks;
(c) as soon as practicable, but in any event within thirty (30) days after the end of each fiscal month, in each fiscal year of the Borrower, unaudited monthly consolidated financial statements of the Guarantor and its Subsidiaries for such fiscal month, as well as a report of sales at each Store for such fiscal month, compared to sales at such Store for the same fiscal month of the previous fiscal year prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial condition of the Guarantor and its Subsidiaries on the date thereof (subject to year-end adjustments), which statements shall set forth in comparative form the figures from the projections, if any, for such fiscal month most recently delivered to the Banks;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D hereto E (the a "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period hereto and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in sec.11 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) contemporaneously with, or promptly following, within two (2) Business Days of the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersBorrower or the Guarantor;
(f) within fifteen (15) days after the end of each fiscal month or at such other time as the Agent may reasonably request after reasonable notice, a Borrowing Base Report setting forth the Borrowing Base as at end of such fiscal month or other date so requested by the Agent; PROVIDED that during the fiscal months of November through January, inclusive, the Borrower will deliver to the Banks within five (5) days after the end of each calendar week, a weekly update of the most recently delivered Borrowing Base Report with respect to Eligible Accounts Receivable; and PROVIDED FURTHER that in any fiscal month the Borrower may, at its option, deliver a Borrowing Base Report with respect to both Eligible Inventory and Eligible Accounts Receivable on a weekly basis so long as during such fiscal month in which the Borrower has delivered a weekly Borrowing Base Report, the Borrower continues to deliver a weekly Borrowing Base Report for the remainder of such fiscal month;
(g) from time to time upon the reasonable request of the Agent, projections of the Guarantor, the Borrower and their Subsidiaries updating those projections delivered to the Banks and referred to in sec.9.4.2 or, if applicable, updating any later such projections delivered in response to a request pursuant to this sec.9.4(g);
(h) by not later than the last Business Day of the Borrower's fiscal year, the Borrower's business plan for the next fiscal year;
(i) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of the Guarantor and the Borrower, the consolidated balance sheet of the Guarantor and its Subsidiaries as at the end of such year, and the related consolidated statement of income and consolidated statement of cash flow for such year, setting forth in comparative form the figures from the projections for such fiscal year most recently delivered to the Banks;
(j) prior to the opening by the Borrower of any new Store or warehouse facility at which Eligible Inventory is to be located, a supplement to SCHEDULE 2 hereto, listing any additions or deletions to the list of Stores and warehouse facilities of the Borrower located in the United States, which supplement, together with SCHEDULE 2 hereto and any prior supplements, shall be deemed to constitute SCHEDULE 2 for all purposes of this Credit Agreement; and
(k) from time to time such other financial data and information (including accountants' management letters) as the Agent or any Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Filenes Basement Corp)
Financial Statements, Certificates and Information. The Borrowers Borrower -------------------------------------------------- will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated and consolidating balance sheets sheet of the Parent Borrower and its Restricted Subsidiaries, as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow, each setting forth in comparative form the figures for the previous fiscal year, and the partial consolidating (in accordance with past practices) balance sheet of the Borrower and its Restricted Subsidiaries, as at the end of such year, and the consolidating statement of income and consolidating statement of cash flow for such year, and all such consolidated and consolidating financial statements to be in reasonable detail, detail and prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and all such consolidated statements to be certified without qualification by Xxxxxx Xxxxxxxx L.L.P. or by other independent certified public accountants satisfactory to the consolidated financial statementsAgent, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each of the first three fiscal quarters of the Borrower and not later than sixty (60) days after the end of the fourth fiscal quarter of the BorrowersBorrower, copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Restricted Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Restricted Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsection (a) above and the delivery of the financial statements referred to in subsection (b) aboveabove with respect to the first three fiscal quarters of the Borrower, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit C hereto (the a "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take compliance with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of the Borrowers; andss.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGenerally Accepted Accounting Principles, with respect and certified without qualification by PricewaterhouseCoopers LLP or by another "big four" certified public accounting firm or by other independent certified public accountants satisfactory to the consolidated financial statementsAdministrative Agent, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPGenerally Accepted Accounting Principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of the Borrower, unaudited monthly consolidated financial statements of the Borrower and its Subsidiaries for such month and unaudited monthly consolidating financial statements of the Borrower and its Subsidiaries for such month, each prepared in accordance with Generally Accepted Accounting Principles, together with a certification by the Controller, Senior Vice President of Finance or other principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial condition of the Borrower and its Subsidiaries on the date thereof (subject to quarterly and year-end adjustments);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7Exhibit K hereto, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in Section 10 and (if applicable) reconciliations to reflect changes in Generally Accepted Accounting Principles since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersBorrower;
(f) within ten (10) Business Days after the end of each calendar month or at such earlier time as the Administrative Agent may reasonably request (i) a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month or other date so requested by the Administrative Agent, (ii) a Consigned Precious Metal Report setting forth (1) the amount of Consigned Precious Metal and Borrower's Precious Metal as of the end of such calendar month or other date so requested by the Administrative Agent, and (2) a calculation of the Consignment Advance Rate Percentage multiplied by the Fair Market Value of the sum of (y) Borrower's Precious Metal plus (z) Consigned Precious Metal as of the end of such calendar month or other date so requested by the Agents, and (iii) a Monthly Inventory Report, in each case together with supporting schedules and documentation, with each such Borrowing Base Report and Consigned Precious Metal Report to be accompanied by a certification by the Controller, Senior Vice President of Finance or the principal financial or accounting officer of the Borrower that the information contained therein is true and accurate in all respects;
(g) within thirty (30) Business Days after the end of each calendar month, an accounts payable aging report;
(h) on or prior to April 30 of each calendar year, projections of the Borrower and its Subsidiaries updating those projections delivered to the Banks and referred to in Section 8.4.2 or, if applicable, updating any later such projections delivered in response to a request pursuant to this Section 9.4(h);
(i) within thirty (30) days of the end of each fiscal quarter, a report setting forth in reasonable detail all Capital Expenditures that each of the Borrower and its Subsidiaries has become legally obligated to make, including, without limitation, in respect of new leases, purchase contracts and construction contracts entered into in connection with new or existing retail stores or distribution centers, during the next twelve (12)-month period;
(j) prior to the opening by the Borrower of any new retail store or distribution center at which Eligible Inventory is to be located, a supplement to Schedule 2 hereto in the form of Exhibit L hereto, listing any additions or deletions to the list of retail stores and distribution centers of the Borrower and its Subsidiaries located in the United States, which supplement, together with Schedule 2 hereto and any prior supplements, shall be deemed to constitute Schedule 2 for all purposes of this Credit Agreement;
(k) within forty-five (45) days after the completion of each of the Borrower's semi-annual central warehouse inventory counts (which inventory counts may be observed by the Agents or by an independent party acceptable to the Agents)
(i) a report with respect to the results of such inventory count and (ii) a report with respect to the results of the Borrower's inventory counts with respect to its retail store locations conducted since the last such report delivered to the Agents and the Banks, each in form and detail satisfactory to the Agents and the Banks; and
(l) from time to time such other financial data and information (including accountants and management letters) as any Agent or any Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Gold Consignment Agreement (Whitehall Jewellers Inc)
Financial Statements, Certificates and Information. The Borrowers Credit Parties will deliver to the Administrative Agent and, upon request, to the Lenders:
(a) as soon as practicable, but, but in any event not no later than 90 ninety (90) days after the end of each fiscal year of the Parent, Fiscal Year,
(i) the consolidated and consolidating balance sheets sheet of Parent, the Parent Borrower and their Restricted Subsidiaries, as at the end of such year, statements of cash flowsFiscal Year, and the related consolidated and consolidating statements of income or operations, cash flows and shareholders’ equity for such Fiscal Year, each setting forth in comparative form the figures for the previous fiscal year, Fiscal Year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP and, consistently applied and such consolidated and consolidating financial statements to be audited and accompanied by a report and opinion prepared in accordance with respect generally accepted auditing standards by independent certified public accountants reasonably satisfactory to the Administrative Agent and certified without qualification and without expression of uncertainty as to the ability of Parent, the Borrower and their Restricted Subsidiaries to continue as going concerns (other than a “going concern” qualification resulting from an upcoming maturity under this Agreement or ABL Credit Agreement occurring within one year from the time of such opinion is delivered or a breach of Section 7.13 hereunder), together with a copy of their accountants’ management letter (if any) for such Fiscal Year and
(ii) a Compliance Certificate duly executed by a Financial Officer of the Borrower, which, among other things,
(A) attaches and certifies to the foregoing consolidated and consolidating financial statements, Certified by accountants statements, management letters and a management discussion and analysis prepared in connection with such financial statements,
(B) certifies that the Accountantsinformation contained in such consolidated and consolidating financial statements fairly presents in all material respects the financial condition of Parent, the Borrower and their Restricted Subsidiaries on the dates indicated therein,
(C) appends computations evidencing the First Lien Net Leverage Ratio and Excess Cash Flow, in each case, for the Reference Period ended as of the last day of such Fiscal Year and specifying whether the Credit Parties have complied with Section 7.13, and
(D) states that such Financial Officer has reviewed this Agreement and the other Loan Documents and has no knowledge of any Default or Event of Default during such Fiscal Year, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the nature thereof;
(b) as soon as practicable, but in any event not no later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowers, copies first three Fiscal Quarters of each Fiscal Year
(i) the consolidated and consolidating balance sheets sheet of Parent, the Borrower and statement of operations of the Parent their Restricted Subsidiaries, as at the end of such quarterFiscal Quarter, subject to year end adjustments, and the related statement consolidated and consolidating statements of income or operations, cash flowsflows and shareholders’ equity for such Fiscal Quarter and the portion of the Fiscal Year through the end of such Fiscal Quarter, each setting forth in comparative form the figures for the previous Fiscal Quarter of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year and all such consolidated and consolidating financial statements to be in reasonable detail and prepared in accordance with GAAPdetail, with a certification by the principal financial or accounting officer of each Borrower (the "CFO") that the consolidated financial statements are prepared in accordance with GAAP consistently applied and
(ii) a Compliance Certificate duly executed by a Financial Officer of the Borrower, which, among other things,
(A) attaches and certifies to the foregoing consolidated and consolidating financial statements and a management discussion and analysis prepared in connection with such financial statements (subject to year-end adjustments and the absence of footnotes),
(B) certifies that the information contained in such consolidated and consolidating financial statements fairly present presents in all material respects the consolidated financial condition of Parent, the Borrowers Borrower and their Restricted Subsidiaries on the dates indicated therein,
(C) appends computations evidencing the First Lien Net Leverage Ratio for the Reference Period ended as of the last day of such Fiscal Quarter and specifying whether the Credit Parties have complied with Section 7.13, and
(D) states that such Financial Officer has reviewed this Agreement and the other Loan Documents and has no knowledge of any Default or Event of Default during such Fiscal Quarter, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the nature thereof;
(c) as soon as practicable, but in any event no later than forty-five (45) days after the end of each of the first two Fiscal Months of each Fiscal Quarter
(i) the unaudited monthly consolidated and consolidating financial statements of Parent, the Borrower and their Restricted Subsidiaries for such Fiscal Month, including the consolidating balance sheet of Parent, the Borrower and their Restricted Subsidiaries, as at the close end of business such Fiscal Month, the related consolidating statements of income or operations and cash flows for such Fiscal Month and for the portion of the Fiscal Year then ended, each setting forth in comparative form the figures for the corresponding Fiscal Month of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year, each, prepared in accordance with GAAP consistently applied and
(ii) a Compliance Certificate duly executed by a Financial Officer of the Borrower, which, among other things,
(A) attaches and certifies to the foregoing consolidated financial statements and a management discussion and analysis prepared in connection with such financial statements (subject to year-end adjustments and the absence of footnotes),
(B) certifies that the information contained in such financial statements fairly presents in all material respects the financial condition of Parent, the Borrower and their Restricted Subsidiaries on the date thereof (subject to year-end adjustments) adjustments and the results absence of operations for the period then ended;footnotes), and
(cC) simultaneously with states that such Financial Officer has reviewed this Agreement and the delivery of the financial statements referred to in (a) other Loan Documents and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have has no knowledge of any Default or Event of DefaultDefault during such Fiscal Month, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the Borrowers shall include in such certificate or otherwise deliver forthwith nature thereof to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoAdministrative Agent’s reasonable satisfaction;
(d) annually not later than January 31 of each Fiscal Year, an annual business plan and projections for Parent, the Borrower and their Restricted Subsidiaries for the following Fiscal Year on a monthly basis (such projections to include consolidated balance sheets, statements of cash flows, statements of income or at operations of Parent, the Borrower and their Restricted Subsidiaries, in each case prepared on a month-by-month basis and such other time as may be matters reasonably requested by the Administrative Agent);
(e) promptly upon receipt thereof, copies of the financial statementsany detailed audit reports, financial projectionscontrol reports, annual budgetmanagement letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Credit Parties by independent accountants other consultants or advisors in connection with the accounts or books of ay Credit Party or any Restricted Subsidiary or any audit of any of them;
(f) immediately, variance reports and business plan in any event within two (2) Business Days after receipt by a member of Senior Management thereof by any Credit Party or any Restricted Subsidiary thereof, copies of each notice or other correspondence received from any Governmental Authority concerning any material investigation by such agency regarding financial or other operational results of any Credit Party or any Restricted Subsidiary;
(g) promptly following the Borrowers request of the Administrative Agent, a report summarizing the insurance coverage in effect for each Credit Party and its Restricted Subsidiaries and promptly following the modification, renewal, replacement of any insurance policy of any Credit Party or its Restricted Subsidiaries, updated insurance certificates and endorsements evidencing such coverage;
(h) as soon as practicable, but in any event no later than ten (10) days following the end of each Fiscal Quarter (or more frequently at the election of the Credit Parties), either (x) updated Schedules 5.07, 5.17, and 7.08, an updated Exhibit A to the IP Security Agreements and an updated list of bank accounts in the Perfection Certificate, in each case in substantially the same form as the most recent schedule of the same delivered to the Administrative Agent or (y) for any of the foregoing for which there has been no change since the previous Fiscal Quarter, a certificate confirming that there has been no change in such information, which such information is supplied updated schedules or certificate of no change shall be satisfactory to the boards of directors Administrative Agent; and
(i) promptly following a request therefor, from time to time such sales projections, budgets, operating plans or other financial data or information as the Administrative Agent or any Lender may reasonably request. Notwithstanding the foregoing, the obligations to provide certain financial statements in Section 6.04(a)(i) and (b)(i) may also be satisfied by the furnishing of the Borrowers;
Form 10-K or 10-Q, as applicable, of Parent (eor Parent’s direct or indirect parent company) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent otherwise made available to the stockholders Administrative Agent for delivery to each Lender, in each case, within the time periods specified in Section 6.04(a) and (b); provided, that to the extent such financial statements relate to any Person or Persons other than Parent, the Borrower and their Restricted Subsidiaries, on a standalone basis, (including, without limitation, any Unrestricted Subsidiaries or any direct or indirect parent of Parent), such financial statements shall be accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such Person or Persons, on the one hand, and Parent, the Borrower and their Restricted Subsidiaries, on a standalone basis, on the other hand, which consolidating information shall be certified by a Financial Officer of the Borrowers; andBorrower as having been fairly presented in all material respects.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to the Administrative Agent (and the Administrative Agent will promptly, after receipt thereof, deliver to the Lenders:):
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, (i) the consolidated and consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, with respect and certified without qualification by Ernst & Young LLP, any nationally recognized firm of independent certified public accountants or by other independent certified public accountants reasonably satisfactory to the consolidated financial statements, Certified Administrative Agent and (ii) a statement certified by the Accountantschief financial officer or the treasurer of the Borrower in substantially the form of Exhibit F attached hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §8 hereof, a calculation of the Obligor Group Requirement and (if applicable) reconciliations to reflect changes in GAAP since the Balance Sheet Date;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfirst three fiscal quarters of each fiscal year of the Borrower, (i) copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal chief financial officer or accounting officer the treasurer of each the Borrower (that to the "CFO") that best of the consolidated Borrower’s knowledge, the information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results (ii) a Compliance Certificate as of operations for the period then endedsuch fiscal quarter end;
(c) simultaneously with from time to time such other financial data and information as the delivery of the financial statements referred to in (a) and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of Administrative Agent or any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoLender may reasonably request;
(di) annually promptly upon becoming aware of the occurrence of any actual or at claimed “Event of Termination” or similar event under and as defined in any of the documents relating to any receivables securitization transaction or other financing of any special purpose receivables Subsidiary of the Borrower, entered into or guaranteed by the Borrower and/or any of its Subsidiaries and then in effect, notice thereof, which notice shall describe such Event of Termination or similar event and indicate what steps the Borrower and its Subsidiaries are taking to remedy the same and (ii) promptly upon request therefor, such other time information with respect thereto as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;Agent shall reasonably request; and
(e) contemporaneously with, or promptly following, after the filing or mailing thereofsame are available, copies of all material of a each annual report, proxy or financial nature filed with the SEC statement or other report or communication sent to the stockholders of the BorrowersBorrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the Securities Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto. All Confidential Information concerning the Borrower supplied by the Borrower to the Lenders pursuant to the terms hereof will be held in confidence by the Lenders and the Lenders shall not disclose such Confidential Information except as permitted by §25 of this Credit Agreement. Documents required to be delivered pursuant to this §6.4 (to the extent any such documents are included in materials otherwise filed with the United States Securities and Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at xxxxxxx.xxx; andor (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender, the Issuing Bank and the Administrative Agent has 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, the Issuing Bank or any Lender that requests in writing that the Borrower deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent, the Issuing Bank or such Lender and (ii) the Borrower shall notify the Administrative Agent (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
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 one hundred ten (110) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of SSI and its Subsidiaries and the consolidating balance sheets sheet of the Parent SSI and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGenerally Accepted Accounting Principles, with respect and certified (as to consolidated statements) without qualification by SSI's accountants or by other independent certified public accountants satisfactory to the consolidated financial statementsAgent, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; PROVIDED that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 fifty (50) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of SSI and its Subsidiaries and the unaudited consolidating balance sheets of SSI and statement of operations of the Parent its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated and consolidating statements of income and consolidated and consolidating statement of cash flowsflow for the portion of the fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPGenerally Accepted Accounting Principles, together with a certification by the principal financial or accounting officer of each SRI and the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP fairly presents the financial position of SRI and fairly present the consolidated financial condition of the Borrowers as at the close of business its Subsidiaries on the date thereof and for the period then ended (subject to year-end adjustments);
(c) as soon as practicable, but in any event within thirty-five (35) days after the end of each month in each fiscal year of the Borrower, preliminary and unaudited monthly consolidated income statement and balance sheet of SSI and its Subsidiaries for such month and unaudited monthly consolidating income statement and balance sheet of SSI and its Subsidiaries for such month, and the results related consolidated and consolidating financial statements of operations SSI and its Subsidiaries for the portion of the Borrower's fiscal year then elapsed, setting forth in comparative form the figures set forth in the Seasonal Projections and projected capital budget portion of the Fiscal Year Projections delivered pursuant to ss.6.4.2 (or, if updated, pursuant toss.8.3(d) or (h)) for the comparable period and those figures for the comparable period in the preceding fiscal year (in the consolidated statement only), each prepared in accordance with Generally Accepted Accounting Principles, together with a certification by the principal financial or accounting officer of SSI that the information contained in such financial statements fairly presents the financial condition of SRI and its Subsidiaries on the date thereof and for the period then endedended (subject to any quarterly and year-end adjustments);
(cd) not later than January 1 and July 1 of each year, the Seasonal Projections of SRI, the Borrower and their Subsidiaries, and not later than January 15 of each year, (i) the Fiscal Year Projections of SRI, the Borrower and their Subsidiaries, updating those Seasonal Projections and Fiscal Year Projections delivered to the Banks and referred to in ss.6.4.2 and (ii) the cash flow budget of SSI and its Subsidiaries for such year;
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D C hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliancecompliance with the covenants contained inss.10 and (if applicable) reconciliations to reflect changes in Generally Accepted Accounting Principles since the Balance Sheet Date, PROVIDED THAT if and within ten (10) Business Days after the Borrowers shall at Borrower's fiscal month ending in December of each fiscal year, a Compliance Certificate setting forth in reasonable detail computations evidencing compliance with the time covenant contained inss.10.6 hereof to the extent that the Compliance Certificate states that (i) the financial statements of issuance SSI and its Subsidiaries fairly present in all material respects the financial condition of SRI and its Subsidiaries for the period in respect of which such certificate have knowledge shall be given and (ii) the consolidated revenue of any Default or Event SRI and its Subsidiaries constitutes substantially all of Defaultthe consolidated revenues of SSI and its Subsidiaries and that the combined assets of SSI and its Subsidiaries constitute substantially all of the consolidated assets of SSI and its Subsidiaries, then for the Borrowers shall include purpose of demonstrating compliance ofss.10 hereof, SRI and the Borrower may use the consolidated financial statements of SSI in such certificate or otherwise deliver forthwith to lieu of the Lenders a certificate specifying actual consolidated financial statements of SRI and the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoBorrower;
(df) annually or at such other time as may be reasonably requested by soon as practicable, but in any event within thirty-five (35) days after the Administrative Agent, copies end of each month in each fiscal year of the Borrower, (i) a store by store analysis setting forth the financial statementsinformation for each store (including such store's monthly sales) for such month, a comparison of such information to the Borrower's current budget for such store and a comparison of such information to the similar financial projectionsinformation for such store in the prior year, annual budget, variance reports as well as an aggregate financial statement for all stores as compared to the similar financial information for all stores contained in the Borrower's budget and business plan concerning the Borrowers in substantially a comparison of such information to the same form information for all stores in which such information is supplied to the boards of directors prior year and (ii) a calculation of the BorrowersBorrower's EBITDA for the prior month;
(eg) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or Securities and Exchange Commission and sent to the stockholders of SSI generally, including without limitation, copies of the Borrowers10-K and 10-Q of SSI;
(h) contemporaneously with the receipt by the Borrower thereof, copies of all letters and other reports of substance submitted to SSI, the Borrower or SRI by independent certified public accountants in connection with any annual or interim audit of the books of SSI, the Borrower or SRI made by such accountants, including, without limitation, all reconciliations made from SSI's management prepared financial statements to its 10-K and 10-Q for the same period;
(i) from time to time upon request of the Agent, Annual Projections of SRI, the Borrower and their Subsidiaries updating those Annual Projections delivered to the Banks and referred to in ss.6.4.2 or, if applicable, updating any later such Annual Projections delivered in response to a request pursuant to this ss.7.4(i);
(j) as soon as practicable, but in any event within three (3) days after the end of each of the Borrower's fiscal weeks for the Borrower's fiscal month of December of each year, a store by store analysis setting forth the sales for each store for such fiscal week and a comparison of such information to the similar information for such store in the prior year, as well as an aggregate financial statement for all stores as compared to the similar information for all stores contained in the Borrower's budget and a comparison of such information to the same information for all stores in the prior year;
(k) as soon as practicable, but in any event within thirty-five (35) days after the end of each fiscal month of the Borrower, the Borrower's "cash flow report", which report shall set forth the Borrower's cash flow for such month, a comparison of such information to the Borrower's current monthly budget for such month, together with a comparison of such information to the Borrower's actual budget, together with any and all updates to the Borrower's budget;
(l) contemporaneously with the mailing or other dissemination thereof, copies of all press releases by SSI or any of its Subsidiaries; and
(m) from time to time such other financial data and information as the Agent or any Bank may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers will deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrowers, the consolidated balance sheet of BGI and consolidating balance sheets of the Parent its Subsidiaries as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, with respect and certified, without qualification and without an expression of uncertainty as to the consolidated financial statementsability of BGI or any of its Subsidiaries to continue as going concerns, Certified by Ernst & Young LLP or by other independent certified public accountants satisfactory to the AccountantsAdministrative Agent, which shall include a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default, they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each of the first three fiscal quarter quarters of the Borrowers, copies of the unaudited consolidated balance sheet of BGI and consolidating balance sheets and statement of operations of the Parent its Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow for the portion of the Borrowers' fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of each Borrower (the "CFO") BGI that the consolidated information contained in such financial statements are prepared in accordance with GAAP fairly presents the financial position of BGI and fairly present the consolidated financial condition of the Borrowers as at the close of business its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrowers in substantially the form of EXHIBIT Exhibit D hereto (the a "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenant contained in Section 10 (if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Defaultapplicable), the Borrowers shall include calculation of Excess Availability, (if applicable) reconciliations to reflect changes in such certificate or otherwise deliver forthwith GAAP since the Balance Sheet Date and setting forth the projections and other information required pursuant to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoSection 9.4(c);
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of any of the Borrowers;
(e) within twenty (20) days after the end of each fiscal month or at such earlier time as the Administrative Agent may reasonably request, a Borrowing Base Report setting forth the Domestic Borrowing Base and the Aggregate Borrowing Base, the Excess Availability and, to the extent applicable, an updated Schedule 7.24 and/or the Fixed Charge Coverage Ratio as at the end of such fiscal month or other date so requested by the Administrative Agent; provided that if at any time a Cash Dominion Event has occurred and is continuing (unless and until a Cash Dominion Cure Event shall have occurred), if requested by the Administrative Agent, then within five (5) days after the end of each calendar week, a Borrowing Base Report setting forth the Domestic Borrowing Base, the Aggregate Borrowing Base and the Excess Availability as at the end of such calendar week and, with respect to such Borrowing Base Report delivered at the end of each fiscal month, an updated Schedule 7.24 (if applicable) and the Fixed Charge Coverage Ratio as at the end of such fiscal month, together with such other information relating to the Collateral as the Administrative Agent shall reasonably request, and accompanied by such supporting detail and documentation as the Administrative Agent shall reasonably request;
(f) contemporaneously with any delivery made in connection with clause (e) of this Section 8.4, an Accounts Receivable aging report and an inventory summary with respect to any Accounts Receivable and inventory included in the Aggregate Borrowing Base or the Domestic Borrowing Base;
(g) within thirty (30) days after the end of each Fiscal Year, and from time to time upon request of the Administrative Agent, monthly projections for the upcoming Fiscal Year of BGI and its Subsidiaries updating those projections delivered to the Lenders and referred to in Section 7.4.3 or, if applicable, updating any later such projections delivered in response to a request pursuant to this Section 8.4(g);
(i) on or before each anniversary of the Closing Date, each Borrower or Guarantor which is a party to the Security Agreement shall deliver to the Collateral Agent a certificate, in substantially the form attached to the Security Agreement as Exhibit A, executed by an Authorized Officer of such Person (A) certifying that there has been no change in any information provided in the perfection certificate delivered in connection with the Security Agreement since the date on which such perfection certificate was signed by such Person (or most recent updated pursuant to this Section 8.4(h)) or (B) attaching an updated perfection certificate for such Person certified to be true and correct as of the date thereof and (ii) on or before each anniversary of the Closing Date, each Borrower or Guarantor which is a party to the UK Security Documents shall deliver to the Administrative Agent a certificate, in substantially the form attached to the Security Agreement as Exhibit A (together with the necessary changes to reflect the nature of the UK Security Documents), executed by an Authorized Officer of such Person (A) certifying that there has been no change in any information provided in the perfection or collateral certificate delivered in connection with the UK Security Documents since the date on which such perfection or collateral certificate was signed by such Person (or most recent updated pursuant to this Section 8.4(h)) or (B) attaching an updated perfection or collateral certificate for such Person certified to be true and correct as of the date thereof; and
(i) from time to time such other financial data and information (including accountants, management letters) as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to this Section 8.4 (to the extent any such documents are included in materials otherwise filed with the United States 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 Borrowers post such documents, or provides a link thereto on the Borrowers' website on the Internet at the website address listed in Section 16.6; or (ii) on which such documents are posted on the Borrowers' behalf on an Internet or intranet website, if any, to which each Lender, each Issuing Bank and each Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent, any Issuing Bank or any Lender that requests the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent, such Issuing Bank or such Lender and (ii) the Borrowers shall notify the Administrative Agent, the Issuing Banks 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 Borrowers shall be required to provide paper copies of the Compliance Certificates required by Section 8.4(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 and Issuing Bank shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Appears in 1 contract
Samples: Multicurrency Revolving Credit Agreement (Borders Group Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will --------- ----------- ------------ --- ----------- deliver to the LendersAgent, with sufficient copies for each of the Banks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of AmeriKing, Holdings and the ParentBorrower, (i) the consolidated balance sheet of AmeriKing and consolidating balance sheets of the Parent its Subsidiaries as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and certified without qualification by Deloitte & Touche or by other independent certified public accountants satisfactory to the consolidated Agent, and (ii) the unaudited consolidating balance sheet of AmeriKing and its Subsidiaries as at the end of such year, and the related unaudited consolidating statement of income and unaudited consolidating statements of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidating statements to be in reasonable detail, prepared by management in accordance with the past financial statements, Certified by practice of AmeriKing and its Subsidiaries and that the Accountantsinformation contained in such financial statements fairly presents the financial position of AmeriKing and its Subsidiaries on the date thereof and for the fiscal period then ended;
(b) as soon as practicable, but in any event not later than 45 forty- five (45) days after the end of each fiscal quarter of the Borrowersfirst three fiscal quarters of the Borrower, copies of the unaudited consolidated and consolidating balance sheets of AmeriKing and statement of operations of the Parent its Subsidiaries each as at the end of such quarter, subject to year end adjustments, and the related statement consolidated and consolidating statements of income and consolidated and consolidating statements of cash flowsflow for the portion of AmeriKing's fiscal year then elapsed, each setting forth in comparative form the figures for the previous fiscal year and a comparison setting forth the corresponding figures from the budgeted or projected figures set forth in the projections described in (S)7.4 hereof for such period and all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, and in each case together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP fairly presents the financial position of AmeriKing and fairly present the consolidated financial condition of the Borrowers as at the close of business its Subsidiaries on the date thereof and for the fiscal period then ended (subject to year-end adjustments) and ). Notwithstanding the results of operations foregoing, for the fiscal quarters ending September 24, 2001 and March 25, 2002 the Borrower shall be required to deliver the financial statements, certificates and information required in this (S)8.4(b) by a date which is not less than four (4) Business Days prior to the date on which any cash payments would be required to be made on the Holdings Senior Notes.
(c) as soon as practicable, but in any event within twenty-one (21) days after the end of each month in each fiscal year of the Borrower, unaudited monthly consolidated and consolidating financial statements of AmeriKing and its Subsidiaries for such month, each setting forth in comparative form the figures for the previous fiscal year and a comparison setting forth the corresponding figures from the budgeted or projected figures set forth in the projections described in (S)7.4 for such period, prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial condition of AmeriKing and its Subsidiaries on the date thereof and for the fiscal period then endedended (subject to year-end adjustments). Notwithstanding the foregoing, for the months ending closest to October 31, 2001 and April 30, 2002 the Borrower shall be required to deliver the financial statements, certificates and information required in this (S)8.4(c) by a date which is not less than four (4) Business Days prior to the date on which any cash payments would be required to be made on the Holdings Senior Notes;
(cd) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D hereto Exhibit C (the "Compliance Certificate") certified by the CFO that the Borrowers are hereto and setting ------- - forth in reasonable detail computations evidencing compliance with the covenants contained in ss.ss.7, 8 (S)10 and 9 hereof, as of (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of AmeriKing, or the BorrowersBorrower;
(f) not later than the beginning of each fiscal year of the Borrower, projections of AmeriKing, Holdings, the Borrower and their Subsidiaries updating those projections delivered to the Banks and referred to in (S)7.4.2 or, if applicable, updating any later such projections delivered pursuant to this (S)8.4(f);
(g) contemporaneously with the delivery thereof, copies of all accountants' management letters delivered to AmeriKing, Holdings, the Borrower or any of their Subsidiaries; and
(h) from time to time such other financial data and information as the Agent or any Bank may reasonably request. The Banks and the Agent agree that they will treat in confidence all financial information with respect to AmeriKing and its Subsidiaries which has not become public, and will not, without the consent of the Borrower, disclose such information to any third party (other than an affiliate of such Bank or the Agent), and, if any representative or agent of the Banks or the Agent shall not be an employee of one of the Banks or the Agent or any affiliate of the Banks or the Agent, such designee shall be reputable and of recognized standing and shall agree to treat in confidence the information obtained during any such inspection and, without the prior written consent of the Borrower, not to disclose such information to any third party or make use of such information for personal gain, it being agreed that such confidential information is intended to be used primarily in connection with the evaluation of the performance of AmeriKing, Holdings, the Borrower and their Subsidiaries by the Banks under the Revolver Loan Documents and the enforcement of rights and obligations under the Revolver Loan Documents, and are not to be used for the purpose of evaluating whether to extend credit to or advise any direct competitor of the Borrower. Notwithstanding the foregoing, the Borrower hereby authorizes the Agent and each of the Banks to disclose information obtained pursuant to this Credit Agreement which has not become public, to banks or other financial institutions who are participants or assignees or potential participants or assignees of the Revolving Credit Loans and/or Letters of Credit made or to be made hereunder with the Borrower's consent, not to be unreasonably withheld, and where required or requested by governmental or regulatory authorities.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers will deliver to the LendersAdministrative Agent:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrowers, the consolidated balance sheets for GWI and its Subsidiaries and the consolidating balance sheets of the Parent GWI and its Subsidiaries, in each case as at the end of such year, statements of cash flows, and the related consolidated statements of income and cash flow for GWI and its Subsidiaries for the period then ended, and the consolidating statements of operationsincome and cash flow for GWI and its Subsidiaries for the period then ended, each setting forth in comparative form the figures for the previous fiscal yearyear (with the exception of the comparative consolidating statements for fiscal year 2002 which will not be provided), and all such consolidated and consolidating financial statements to be in reasonable detail, detail and prepared in accordance with GAAP andGAAP, with respect and all such consolidated and consolidating statements to be certified without qualification by PriceWaterhouseCoopers LLP or by other independent certified public accountants satisfactory to the consolidated financial statementsAdministrative Agent, Certified by together with (i) a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default and (ii) their accountants' management letter relating to such fiscal year;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each of the first three fiscal quarter quarters of the Borrowers, copies of the unaudited consolidated balance sheets of the Borrowers and their Restricted Subsidiaries and the consolidating balance sheets and statement of operations of the Parent Borrowers and their Restricted Subsidiaries, in each case as at the end of such quarter, subject to year end adjustments, the related statement consolidated statements of income and cash flowsflow for the Borrowers and their Restricted Subsidiaries for the portion of the Borrowers' fiscal year then elapsed, and the consolidating statements of income and cash flow for the Borrowers and their Restricted Subsidiaries for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer officers of each Borrower (the "CFO") Borrowers that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present the consolidated financial condition position of the Borrowers as at the close of business and their Restricted Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsection (a) and subsection (b) above, provided that for the fiscal quarter ending as of September 30, 2002 the Borrowers shall deliver the financial statements referred to in subsection (b) above and a calculation of the Funded Debt to EBITDAR Ratio for the fiscal period then ended, a statement certified by the principal financial or accounting officers of the Borrowers in substantially the form of EXHIBIT Exhibit D hereto (the a "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliancecompliance with the covenants contained in (Section)11 and, PROVIDED THAT in each case, (if applicable) reconciliations to reflect changes in GAAP since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoBalance Sheet Date;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature (i) filed with the SEC Securities and Exchange Commission or (ii) sent to the stockholders of the Borrowers;
(e) no later than February 28 of each fiscal year of the Borrowers, the annual budgets of the Borrowers and their Restricted Subsidiaries, including projected consolidated balance sheets for the end of such fiscal year and the end of each quarter of such fiscal year and consolidated statements of income and cash flow for such fiscal year and the end of each quarter of such fiscal year of the Borrowers and their Restricted Subsidiaries; and
(f) from time to time such other financial data and information as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Genesee & Wyoming Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver or cause to be delivered to the LendersAgent:
(a) as soon as practicable, but, in any event not later than 90 one hundred twenty (120) days after the end of each fiscal year calendar year, the audited Consolidated balance sheet of the Parent, the consolidated Pledgor and consolidating balance sheets of the Parent as its Subsidiaries at the end of such year, statements of cash flows, and the related audited consolidated and consolidating statements of operationsincome, each changes in capital and cash flows for such year, setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, together with respect a certification by an Authorized Officer or the chief financial officer or accounting officer of the Borrower that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the consolidated scope of the audit by a member firm of KPMG, LLP or another nationally recognized accounting firm, and any other information the Agent may reasonably request to complete a financial statements, Certified by analysis of the AccountantsBorrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than 45 sixty (60) days after the end of each fiscal calendar quarter of the Borrowerseach year, copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Pledgor and its Subsidiaries and the Borrower and its Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related statement unaudited consolidated statements of income and cash flowsflows for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by an Authorized Officer or the principal chief financial officer or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared fairly presents in accordance with GAAP and fairly present all material respects the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by an Authorized Officer or the chief financial officer or chief accounting officer of the Borrower in the form of EXHIBIT D Exhibit G hereto (or in such other form as the "Compliance Certificate"Agent may reasonably approve from time to time) certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in §9. All income, expense, debt and value associated with Real Estate or other Investments disposed of during any quarter will be eliminated from calculations, where applicable. The Compliance Certificate shall be accompanied by copies of the statements of Net Operating Income for such compliancecalendar quarter for the Real Estate, PROVIDED THAT if prepared on a basis consistent with the Borrowers shall at statements furnished to Agent prior to the time date hereof and otherwise in form and substance reasonably satisfactory to Agent, together with a certification by an Authorized Officer or the chief financial officer or chief accounting officer of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include Borrower that the information contained in such certificate or otherwise deliver forthwith to statement fairly presents in all material respects Net Operating Income of the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoReal Estate for such periods;
(d) annually or at such other time as may be reasonably requested by simultaneously with the Administrative Agent, copies delivery of the financial statementsstatements referred to in clause (a) above, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards statement of directors all contingent liabilities involving amounts of $1,000,000 or more of the BorrowersBorrower or the Pledgor which are not reflected in such financial statements or referred to in the notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in respect of the indebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) contemporaneously withsimultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, upon request by Agent, a statement (i) listing the Real Estate owned by the Borrower and its Subsidiaries (or promptly followingin which the Borrower or its Subsidiaries owns an interest), (ii) listing the Indebtedness (excluding, for the purposes hereof, the filing redemption obligations under the Partnership Agreement) of the Borrower and its Subsidiaries, which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or mailing thereofnon-recourse;
(f) if requested by the Agent, promptly after they are filed with the Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the Borrower;
(g) not later than December 15 of each year, a budget and business plan for the Borrower for the next calendar year;
(h) from time to time such other financial data and information in the possession of the Borrower or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrower or the Pledgor and any settlement discussions relating thereto (unless the Borrower in good faith believe that such disclosure could result in a waiver or loss of attorney work product, attorney-client or any other applicable privilege), property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrower or the Pledgor) as the Agent may reasonably request. Any material of a financial nature filed with the SEC to be delivered pursuant to this §7.4 may be delivered electronically directly to Agent or sent made available to the stockholders Agent pursuant to an accessible website and the Lenders provided that such material is in a format reasonably acceptable to the Agent, and such material shall be deemed to have been delivered to the Agent and the Lenders upon the Agent’s receipt thereof or access to the website containing such material. Upon the request of the Borrowers; andAgent, the Borrower shall deliver paper copies thereof to the Agent and the Lenders. The Borrower authorize the Agent to disseminate any such materials through the use of Intralinks, SyndTrak or any other electronic information dissemination system provided that system is secure and access thereto is protected by a password that is only disclosed to the Lenders, and the Borrower releases the Agent and the Lenders from any liability in connection therewith (other than the liability based on the Agent’s gross negligence or willful misconduct).
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers will deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrowers, the consolidated balance sheet of MSSR and consolidating balance sheets of the Parent its Subsidiaries as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, with respect and certified, without qualification and without an expression of uncertainty as to the consolidated financial statementsability of MSSR or any of its Subsidiaries to continue as going concerns, Certified by PricewaterhouseCoopers or by other independent certified public accountants reasonably satisfactory to the AccountantsRequired Lenders, together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each of the fiscal quarter quarters of the Borrowers, (i) copies of the unaudited consolidated balance sheet of MSSR and consolidating balance sheets and statement of operations of the Parent its Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow for such fiscal quarter and the portion of such Persons’ fiscal year then elapsed, setting forth in each case in comparative form the figures for the corresponding period or periods of the previous fiscal year and the comparisons to projections for such period, all in reasonable detail and prepared in accordance with GAAP (subject to year-end adjustments and footnote information required by GAAP), together with a certification by the principal financial or accounting officer of each Borrower (the "CFO") MSSR that the consolidated information contained in such financial statements are prepared fairly presents in accordance with GAAP all material respects the financial position of MSSR and fairly present the consolidated financial condition of the Borrowers as at the close of business its Subsidiaries on the date thereof (subject to year-end adjustmentsadjustments and footnote information required by GAAP); and (ii) statements of sales and statements of net earnings before interest, taxes, depreciation and amortization expense, on a summarized Restaurant-by-Restaurant basis, for each Restaurant operated by any of the results of operations Borrowers or their Subsidiaries, setting forth in each case in comparative form the statements for the corresponding period then endedor periods of the prior fiscal year and a comparison to the projections for such period, such statements to be in a form satisfactory to the Required Lenders;
(c) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of MSSR, unaudited monthly consolidated financial statements of MSSR and its Subsidiaries for such month and the portion of such Persons’ fiscal year then ending, setting forth in each case in comparative form the figures for the corresponding period or periods of the previous fiscal year and the comparisons to projections for such period, prepared in accordance with GAAP (subject to year-end adjustments and footnote information required by GAAP), together with a certification by the principal financial or accounting officer of MSSR that the information contained in such financial statements fairly presents in all material respects the financial condition of MSSR and its Subsidiaries on the date thereof (subject to year-end adjustments and footnote information required by GAAP), including a list of any new Restaurant locations as required pursuant to §9.14;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrowers in substantially the form of EXHIBIT D Exhibit C hereto (the "a “Compliance Certificate"”) certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in §11 and (if applicable) reconciliations to reflect changes in GAAP since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) simultaneously with the delivery of the financial statements referred to in subsection (a) above, a statement certified by the principal financial or accounting officer of the Borrowers setting forth in reasonable detail computations of the Consolidated Excess Operating Cash Flow for the fiscal year then ended;
(f) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or Securities and Exchange Commission or, sent to the stockholders equity holders of the Parent or any of the Borrowers;
(g) within forty-five (45) days after the beginning of each fiscal year of the Borrowers and, if a Default or Event of Default shall have occurred and be continuing, from time to time upon the request of the Administrative Agent, projections and budgets of the Borrowers and their Subsidiaries organized for the next fiscal year on a month-by-month and quarter-by-quarter basis updating those projections delivered to the Lenders and referred to in §8.4.3 or, if applicable, updating any later such projections delivered in response to a request pursuant to this §9.4(g);
(h) all information sent to the directors of the Borrowers regarding the opening of new Restaurants;
(i) all notices and other information sent to any holder of Subordinated Debt in its capacity as such; and
(j) from time to time such other financial data and information (including accountants, management letters) as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to the Agent and each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 one hundred twenty (120) days after the end of each fiscal year of the ParentHolding Company and its Subsidiaries, commencing with the fiscal year ending December 31, 2010, and thereafter, the audited consolidated balance sheet of the Holding Company and its Subsidiaries and the consolidating balance sheets sheet of the Parent Holding Company and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of the income and consolidating statements consolidated statement of operations, each stockholders' equity and cash flow and consolidating statement of income and consolidating statement of cash flow for such year, setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, in each case prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and for all such statements, certified without qualification by CCR LLP or by other independent certified public accountants reasonably satisfactory to the Agent and the Required Lenders, together with an opinion of such accountant to the effect that such financial statements present fairly in all material respects the financial condition and results of operations of the Holding Company and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied and that the audit by such accountants in connection with such financial statementsstatements has been made in accordance with generally accepted auditing standards and a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, Certified by and that, in making the Accountantsexamination necessary to said certification, they have obtained no knowledge of any Default or Event of Default under Article 12 hereof, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default under Article 12, they shall disclose in such statement any such Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the BorrowersBorrower commencing with the fiscal quarter ending September 30, 2010, copies of the unaudited consolidated balance sheet of the Holding Company and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such fiscal quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by one of the principal financial or accounting officer of each Borrower (the "CFO") Borrower's Key Officers that the consolidated information contained in such financial statements are prepared fairly presents in accordance with GAAP and fairly present all material respects the consolidated financial condition position of the Borrowers as at the close of business Holding Company and its Subsidiaries on the date thereof (subject to the lack of footnotes and year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower, in substantially the form of EXHIBIT D hereto Exhibit B hereto, and setting forth in reasonable detail: (the "Compliance Certificate"i) certified by the CFO that the Borrowers are in computations evidencing compliance with the covenants contained in ss.ss.7Article 12 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date, 8 and 9 hereoftogether with supporting documentation used in such calculations or determinations, as of the end of case may be, and a comparison to: (x) the Borrower's results obtained in such applicable period during the preceding fiscal year and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if (y) the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith budget which was delivered to the Lenders a certificate specifying for the nature and period of existence thereof and what action the Borrowers propose to take with respect theretothen current fiscal year;
(d) annually or at such other time as may be reasonably requested by soon as practicable, but in any event not later than thirty (30) days after the Administrative Agentend of each calendar month, commencing with the month ending June 30, 2010, copies of the financial statementsunaudited consolidated balance sheet of the Holding Company and its Subsidiaries and the unaudited consolidating balance sheet of the Holding Company and its Subsidiaries, financial projectionseach as at the end of such calendar month, annual budgetthe related consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied a comparison to the boards of directors results obtained in the preceding fiscal year and to the budget which was delivered to the Lenders for the then current fiscal year, all in reasonable detail and prepared in accordance with generally accepted accounting principals together with a certification by one of the BorrowersBorrower's Key Officers that the information contained in such financial statements fairly presents in all material respects the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments and the lack of footnotes);
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersBorrower or the Holding Company, as the case may be;
(f) by not later than fifteen (15) days after the end of each calendar month: (i) an accounts receivable aging and (ii) Inventory reports in form satisfactory to the Agent;
(g) as soon as practicable, but in any event not later than December 31 of each fiscal year of the Borrower, projections of the Holding Company and its Subsidiaries updating those projections delivered to the Lenders and referred to in Section 9.4(b) or, if applicable, updating any later such projections delivered in response to a request pursuant to this Section 10.4(g) and a proposed annual detailed business operating budget for the next succeeding fiscal year prepared on a monthly basis which shall set forth, in detail reasonably satisfactory to the Required Lenders, the assumptions underlying such business operating budget; and
(h) from time to time such other financial data and information (including accountants' management letters) as the Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Subordinated Loan Agreement (Cyalume Technologies Holdings, Inc.)
Financial Statements, Certificates and Information. The Borrowers Company will, and will cause each of its Subsidiaries to, deliver to each of the LendersNoteholders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentCompany, the consolidated balance sheet of the Company and its Subsidiaries and consolidating balance sheets sheet of the Parent Company and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flows and consolidating statements statement of operationsincome and consolidating statement of cash flows for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, and in the case of the consolidated statements, certified by Mayer Rispler and Company or by other regionally- or nationally-recoxxxxxx xxxxxxndent certified public accountants, together with respect a written statement from such accountants to the consolidated financial statementseffect that they have obtained no knowledge of any Default or Event of Default, Certified by the Accountantsor, if such accountants shall have obtained knowledge of any then existing Default or Event of Default, they shall disclose in such statement any such Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Company, copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Company and its Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related consolidated and consolidating statement of income and consolidated and consolidating statement of cash flowsflow for the portion of the fiscal year of the Company then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each Borrower (the "CFO") Company that the consolidated information contained in such financial statements are prepared fairly presents in accordance with GAAP and fairly present all material respects the consolidated financial condition position of the Borrowers as at the close of business Company and its Subsidiaries on the date thereof (subject to year-end audit adjustments) and a management report (i) comparing the results of operations corresponding figures for the period then endedcorresponding periods of the previous fiscal year and the corresponding figures from the most recent budget for the current fiscal year and (ii) discussing the reasons for any significant variations;
(c) promptly as they are filed or become available, true, correct and complete copies of all such financial statements, proxy material and reports as any of the Borrowers or any Subsidiaries shall send to or make available to stockholders or holders of any Indebtedness of any of the Borrowers or any Subsidiaries, or shall file with the SEC or any stock exchange or NASDAQ, or announcements made to the general public by any of the Borrowers or any Subsidiary;
(d) from time to time, notice of changes in any applicable margin (as set forth in the Senior Credit Agreement) as they become effective;
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Company setting forth reconciliations to reflect changes in generally accepted accounting principles since the form of EXHIBIT D hereto Balance Sheet Date (the a "Compliance Certificate") certified and, at the request of the Noteholders, copies of any annual accountant's management letter received by the CFO that Company;
(f) as soon as practicable, but in any event no later than fifteen (15) days prior to the Borrowers are in compliance start of each fiscal year, commencing with the covenants contained in ss.ss.7, 8 and 9 hereof, as start of the end fiscal year ending March 31, 2001, a budget and customary supporting financial information of the applicable period Company and setting forth its Subsidiaries for the succeeding fiscal year, including balance sheets, operating statements and forecasts on a quarterly basis, in reasonable detail computations evidencing such complianceand in the form delivered to the Company's Board of Directors, PROVIDED THAT if and promptly upon preparation thereof any similar budgets or other financial information prepared by the Borrowers shall at the time of issuance of such certificate have knowledge Company and any material revisions of any Default such annual or Event of Defaultother budgets or financial information; and
(g) from time to time, the Borrowers shall include in such certificate or otherwise deliver forthwith other financial data and information relating to the Lenders a certificate specifying the nature Company and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time its Subsidiaries as any Noteholder may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of the Borrowers; andrequest.
Appears in 1 contract
Samples: 12% Senior Subordinated Note and Warrant Purchase Agreement (Allou Health & Beauty Care Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Holding Company and its Subsidiaries and the consolidating balance sheets sheet of the Parent Holding Company and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP Generally Accepted Accounting Principles, and, with respect to the all such consolidated financial statements, Certified certified without qualification by the AccountantsBorrower's certified public accountant or by other independent certified public accountants satisfactory to the Agent, together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; PROVIDED that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Holding Company and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Holding Company and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPGenerally Accepted Accounting Principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Holding Company and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of the Borrower, unaudited monthly consolidated financial statements of the Holding Company and its Subsidiaries for such month and unaudited monthly consolidating financial statements of the Holding Company and its Subsidiaries for such month, each prepared in accordance with Generally Accepted Accounting Principles, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial condition of the Holding Company and its Subsidiaries on the date thereof (subject to year-end adjustments);
(d) simultaneously with the delivery of the financial statements referred to in SUBSECTIONS (aA) and (bB) above, a statement certified, on behalf of the Borrower, by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7F hereto, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested compliance by the Administrative Agent, copies Holding Company and each of its Subsidiaries with the financial statements, financial projections, annual budget, variance reports covenants contained in SECTION 11 hereof and business plan concerning (if applicable) reconciliations to reflect changes in Generally Accepted Accounting Principles since the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) contemporaneously withwithin twenty (20) days after the end of each calendar month or at such earlier time as the Agent may reasonably request, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month or promptly followingother date so requested by the Agent;
(f) within twenty (20) days after the end of each calendar month, an Accounts Receivable aging report;
(g) as soon as practicable, but in any event not later than sixty (60) days after reasonably requested by the Agent, a current summary report setting forth in detail all information concerning the Rental Equipment and/or Rental Inventory, including without limitation (i) a list of all locations of such equipment, (ii) a list of all lease arrangements concerning such equipment and (iii) detailed descriptions of each such lease, which summary shall be in form and substance satisfactory to the Agent;
(h) within thirty (30) days after the end of each fiscal year, projections of the Holding Company and its Subsidiaries;
(i) within five (5) Business Days prior to the end of each calendar month, the filing or mailing thereofUK Monthly Maximum Amount Certificate setting forth the UK Monthly Maximum Amount for the next calendar month, copies in the form of all material of a financial nature filed EXHIBIT G hereto;
(j) simultaneously with the SEC delivery of the Borrowing Base Report referred to in SUBSECTION (E) above, a statement certified, on behalf of the Borrower, by the principal financial or sent accounting officer of the Borrower summarizing certain information concerning the inventory of the Borrower and its Subsidiaries constituting Eligible Inventory which is not located in the United States of America, England, Wales or the Dominion of Canada, including a list of the approximate book value of the inventory at each location and the project or customer for which such inventory is being used;
(k) simultaneously with the delivery of the financial statements referred to in SUBSECTION (B) above, a report listing the orders and contractual back-log of each of the Holding Company and its Subsidiaries, which reports shall be in form and substance substantially similar to those customarily prepared by the Borrower, a copy of the most recent report of which has been delivered to the stockholders of Agent by the BorrowersBorrower prior to the date hereof; and
(l) from time to time such other financial data and information (including accountants, management letters) as the Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (CRC Evans International Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and certified without qualification by Ernst & Young or by a nationally recognized independent certified public accounting firm that is currently known as a "Big Six" accounting firm or by other independent certified public accountants satisfactory to the consolidated financial statementsAgent, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfirst three (3) fiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit E hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in Section 11 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoBalance Sheet Date;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or Securities and Exchange Commission, sent to the stockholders of the BorrowersBorrower or sent to any holders of the Subordinated Notes or the Indenture Trustee;
(e) within fifteen (15) days after the end of each calendar month, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month or other date so requested by the Agent;
(f) not later than thirty (30) days after the end of each fiscal year, budgets of the Borrower and its Subsidiaries for the next fiscal year; and
(g) from time to time such other financial data and information (including accountants, management letters) as the Agent or any Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Flextronics International LTD)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower (notwithstanding the foregoing, the Borrower shall deliver its annual financial statements for its fiscal years 2000 and 2001 within ninety (90) days of the Closing Date), the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and certified (such certification to be in form and substance satisfactory to the consolidated financial statementsAgent) by Deloitte & Touche, Certified L.P. or by other independent certified public accountants satisfactory to the AccountantsAgent, together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of the Borrower, unaudited monthly consolidated financial statements of the Borrower and its Subsidiaries for such month and unaudited monthly consolidating financial statements of the Borrower and its Subsidiaries for such month, each prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial condition of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as principal financial or accounting officer of the end of Borrower, in form and substance satisfactory to the applicable period Required Banks, and (i) setting forth in reasonable detail computations evidencing such compliancecompliance with the covenants contained in Section 9 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since September 30, PROVIDED THAT if 2001 (with respect to financial statements delivered prior the Borrowers shall at Required Banks' receipt and approval of the time financial statements for the fiscal year ended on December 31, 2001) or December 31, 2001 (with respect to financial statements delivered following the Required Banks' receipt and approval of issuance of such certificate have knowledge of any the financial statements for the fiscal year ended on December 31, 2001), (ii) stating that no Default or Event of DefaultDefault has occurred and (iii) if a Default or Event of Default has occurred and is continuing, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and the period of existence thereof and what the action the Borrowers propose proposed to take be taken with respect thereto;
(de) annually or at such other within five (5) days after the filing thereof, a copy of the Borrower's Form 10-K and 10-Q as filed with the Securities and Exchange Commission;
(f) (i) on the first day of each calendar week, (ii) from time to time as may be reasonably requested by the Administrative Agent, copies (iii) simultaneously with each Loan Request, and (iv) simultaneously with any request for release of any Collateral, a Borrowing Base Certificate substantially in the form of EXHIBIT A, accompanied by summary aging reports and a trial balance of the financial statementsConsumer Loan Collateral, financial projections, annual budget, variance reports and business plan concerning the Borrowers acceptable in substantially the same form in which such information is supplied to the boards of directors of the BorrowersRequired Banks;
(eg) contemporaneously withwithin thirty (30) days after filing, a copy of the federal income tax return for the Borrower and the Association, with all schedules;
(h) within one hundred and twenty (120) days after the close of each fiscal year, annual reports required by each relevant Timeshare Act, or promptly followingsuch other management prepared financial statements of Silverleaf Club containing information concerning each Eligible Project satisfactory to the Required Banks;
(i) no later than sixty (60) days prior to the start of any fiscal year, the filing Borrower shall submit to the Banks an update to the Business Plan for the upcoming fiscal year in form acceptable to the Required Banks (each such update to the Business Plan shall be subject to the Required Banks' approval);
(j) no later than the fifteenth (15th) day of each calendar month, the Borrower shall furnish to the Banks, or mailing thereofcause the Servicer to furnish to the Banks, three (3) copies of all material of a financial nature filed with the SEC or sent report in form and substance acceptable to the stockholders Required Banks prepared by the Borrower or the Servicer, certified by an Authorized Officer of the BorrowersBorrower, and showing, with respect to each of the loans constituting Consumer Loan Collateral as of the close of business on the last day of the calendar month last ended:
(i) the account number;
(ii) name(s) of consumer borrower(s);
(iii) original principal amount of such consumer loan;
(iv) any payment, including any prepayment, received on account of such consumer loan during the period covered by the statement;
(v) a cash receipts journal;
(vi) the opening and closing principal balance;
(vii) any consumer loans constituting Consumer Loan Collateral cancelled during the period covered by such statement;
(viii) any delinquency of principal and interest payments on a 30-60-90 day basis;
(ix) any delinquency of principal, interest or assessments in excess of ninety (90) days;
(x) the interest rate for each consumer loan and the weighted average consumer interest rate for all Eligible Consumer Loan pledged to the Agent and the outstanding principal amount of Eligible Consumer Loans bearing an interest rate of less than 12.5% and such amount expressed as a percentage of the outstanding principal balance of all Eligible Consumer Loans;
(xi) any extensions, refinances or other adjustments to such consumer loan;
(xii) the outstanding principal balance of Eligible Consumer Loans made to residents of Canada and such amount expressed as a percentage of the outstanding principal balance of all Eligible Consumer Loans;
(xiii) the outstanding principal balance of Eligible Consumer Loans made to consumer borrowers with a FICO Credit Bureau Score of less than 600 and such amount expressed as a percentage of the outstanding principal balance of all Eligible Consumer Loans;
(xiv) the weighted average of the FICO Credit Bureau Scores of all consumer borrowers under Eligible Consumer Loans;
(xv) the outstanding principal balance of Eligible Consumer Loans described in paragraph (9)(b) of the definition of "Eligible Consumer Loans" and such amount expressed as a percentage of the outstanding principal balance of all Eligible Consumer Loans;
(xvi) the outstanding principal balance of Eligible Consumer Loans with an original term of greater than eighty-four (84) months and such amount expressed as a percentage of the outstanding principal balance of all Eligible Consumer Loans; and
(xvii) such other information as the Agent or any Bank .may request;
(k) no later than the fifteenth (15th) day of each calendar month, the Borrower shall deliver to the Banks a sales and cancellation report indicating the sales and cancellation activity with respect to each Eligible Project for the preceding calendar month showing such detailed information as the Agent or any Bank may request;
(l) no later than the fifteenth (15th) day of each calendar month, the Borrower shall deliver to the Banks an inventory report in form satisfactory to the Required Banks indicating the number of Timeshare Interests sold and unsold at each Eligible Project, identified by Unit and type or color of Timeshare Interest, for the preceding calendar month;
(m) no later than the fifteenth (15th) day of each calendar month, the Borrower shall deliver to the Banks a report in form satisfactory to the Required Banks indicating the performance of each Eligible Consumer Loan pledged as Collateral described in clause (b) of paragraph (9) of the definition of "Eligible Consumer Loan" during the preceding calendar month;
(n) no later than the fifteenth (15th) day of each calendar month, the Borrower shall deliver to the Banks a report in form satisfactory to the Required Banks indicating, among other things, the conformity of the Borrower's business to the Business Plan and any variances therefrom during the preceding calendar month;
(o) weekly "flash reports" (the "WEEKLY FLASH REPORTS") consisting of the number of showings of the Eligible Projects to prospective purchasers of Timeshare Interests, gross sales reports, accountants payables reports, accounts receivables reports and cash balances before 5:00 p.m. (eastern standard time) on each Thursday during the term hereof for the prior week; and
(p) from time to time, with reasonable promptness, such other financial data and information (including accountants, management letters) and such other information concerning the Collateral, the Eligible Projects and the business and operations of the Borrower, as the Agent or any Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Silverleaf Resorts Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated and consolidating audited balance sheets sheet of the Parent as Borrower and of the Company at the end of such year, statements of cash flows, and the related consolidated audited statement of income, statement of changes in shareholders, equity and consolidating statements statement of operationsFunds From Operations and taxable income for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGenerally Accepted Accounting Principles on a consolidated basis including the Borrower, with respect the Company and the Related Companies, and accompanied by an auditor's report prepared without qualification by Ernst & Young LLP or by another independent certified public accountant reasonably acceptable to the consolidated financial statements, Certified by the AccountantsAgent;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the BorrowersBorrower, copies of the consolidated and consolidating unaudited balance sheets and statement of operations of the Parent Borrower as at the end of such quarter, subject to year end adjustments, and the related unaudited statement of cash flowsincome, statement of changes in shareholders' equity and statement of Funds From Operations and estimated taxable income for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPGenerally Accepted Accounting Principles, together with a certification by the principal financial or accounting officer of each Borrower (the "CFO") Company that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at Borrower and of the close of business Company on the date thereof (subject to year-end adjustments) and ), provided, however, that such information with respect to the results of operations for the period then endedquarter ended September 30, 1997 shall be delivered by December 29, 1997;
(c) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Borrower, copies of a statement of the Net Operating Income for such fiscal quarter for each Mortgaged Property, and a consolidating statement of the Net Operating Income for such fiscal quarter for all of the Mortgaged Properties, prepared on a basis consistent with the statements furnished pursuant to (S)6.4 (b) , and certified by a Responsible Officer of the Company;
(d) as soon as practicable, but in any event no later than forty-five (45) days after the end of each fiscal quarter of the Borrower, a rent roll for each of the Mortgaged Properties, and a consolidated rent roll for all of the Mortgaged Properties, each dated as of the end of such fiscal quarter in form reasonably satisfactory to the Agent;
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement in the form of EXHIBIT D Exhibit C hereto (the "Compliance Certificate") certified signed by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as a Responsible Officer of the end of the applicable period Company and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained herein and (if applicable) reconciliations to reflect changes in Generally Accepted Accounting Principles since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoFacility Closing Date;
(df) annually or at such other time as may be reasonably requested by soon as practicable, but in any event not later than ninety (90) days after the Administrative Agentend of each fiscal year of the Company, copies of the financial statementsForm 10-K statement filed with the Securities and Exchange Commission ("SEC") for such fiscal year, financial projectionsand as soon as practicable, annual budgetbut in any event not later than forty-five (45) days after the end of each fiscal quarter, variance reports and business plan concerning copies of the Borrowers Form 10-Q statement filed with the SEC for such fiscal quarter, provided that in substantially either case if the same form in which SEC has granted an extension for the filing of such information statements (or if a later filing is supplied permitted by rule of the SEC with respect to the boards of directors of fiscal quarter ended September 30. 1997), Borrower shall deliver such statements to the BorrowersAgent simultaneously with the filing thereof with the SEC;
(eg) contemporaneously with, or promptly following, following the filing or mailing thereof, copies of all other material of a financial nature filed with the SEC or sent to the stockholders shareholders of the BorrowersCompany or to the limited partners of the Borrower and copies of all press releases (except local press releases relating to specific properties) promptly upon the issuance thereof; and
(h) from time to time such other financial data and information (including accountants' management letters) as the Agent or any Lender may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers will deliver to each of the Lenders:
(a) as soon as practicable, but, in any event not later than 90 days after the end of each fiscal year of the Parent, the consolidated and consolidating balance sheets sheet of the Parent as at the end of such year, statements consolidated income statement, and consolidated statement of cash flows, and the related consolidated and consolidating statements of operations, each setting forth in comparative form the figures amounts for the previous fiscal year, all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, with respect to the consolidated financial statements, Certified and certified without qualification by the Accountants;
(b) as soon as practicable, but in any event not later than (i) 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Parent, and (ii) 90 days after the end of the last fiscal quarter of the Borrowerseach fiscal year, copies of the unaudited consolidated and consolidating balance sheets sheet, income statement and statement of operations cash flows of the Parent as at the end of such quarterquarter and for the fiscal year to date, comparing actual results with corresponding figures for the same period in the preceding fiscal year, subject to year end audit adjustments, the related statement of cash flows, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of each Borrower the Parent (the "CFO") that the consolidated such financial statements are have been prepared in accordance with GAAP GAAP, are complete and correct in all material respects, and fairly present the consolidated financial condition of the Borrowers Parent and its Subsidiaries as at the close of business on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended, subject to normal year-end audit adjustments;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, (i) a statement in the form of EXHIBIT D Exhibit C hereto (the "Compliance Certificate") certified by the CFO that the Borrowers Parent and its Subsidiaries are in compliance with the covenants contained in ss.ss.7(S)(S)9, 8 10, and 9 hereof, 11 hereof as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT provided that if the Borrowers Parent and its Subsidiaries shall at the time of issuance of such certificate have or at any other time obtain knowledge of any Default or Event of Default, the Borrowers Parent and its Subsidiaries shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers Parent and its Subsidiaries propose to take with respect thereto; [(ii) a backlog report in the form of Exhibit D hereto; and (iii) additional consolidating financial information in the form of Exhibit E hereto];
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all forms 8-K, 10-K, and 10-Q and any other material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersParent; and
(e) from time to time such other financial data and information, including, without limitation, pro forma financial projections, financial information relating to the Excluded Subsidiaries, or financial information and financial covenant calculations regarding the accounts of the Borrowers, as any Agent or any Lender may reasonably request. The Borrowers hereby authorize any Agent or any Lender to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by law; provided, however, that such Agent or such Lender shall, to the extent allowable under law, notify the Borrowers at the time any such disclosure is made (except in the case of disclosures made in the course of bank regulatory reviews); and provided further that this authorization shall not be deemed to be a waiver of any rights to object to the disclosure by any Agent or any Lender of any such information which the Borrowers have or may have under the federal Right to Financial Privacy Act of 1978, as in effect from time to time.
Appears in 1 contract
Samples: Multicurrency Credit Agreement (United States Filter Corp)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGenerally Accepted Accounting Principles, with respect and certified without qualification by PricewaterhouseCoopers LLP or by another "big four" certified public accounting firm or by other independent certified public accountants satisfactory to the consolidated financial statementsAdministrative Agent, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; PROVIDED that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPGenerally Accepted Accounting Principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to as soon as practicable, but in any event within thirty (a30) and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of days after the end of each month in each fiscal year of the applicable period Borrower, unaudited monthly consolidated financial statements of the Borrower and setting forth its Subsidiaries for such month and unaudited monthly consolidating financial statements of the Borrower and its Subsidiaries for such month, each prepared in reasonable detail computations evidencing such complianceaccordance with Generally Accepted Accounting Principles, PROVIDED THAT if together with a certification by the Borrowers shall at Controller, Senior Vice President of Finance or other principal financial or accounting officer of the time of issuance of such certificate have knowledge of any Default or Event of Default, Borrower that the Borrowers shall include information contained in such certificate or otherwise deliver forthwith financial statements fairly presents the financial condition of the Borrower and its Subsidiaries on the date thereof (subject to the Lenders a certificate specifying the nature quarterly and period of existence thereof and what action the Borrowers propose to take with respect theretoyear-end adjustments);
(d) annually or at such other time as may be reasonably requested by within ten (10) days following the Administrative Agentdate hereof, copies the Borrower shall deliver to the Lenders projections of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors operating budgets of the BorrowersBorrower and its Subsidiaries on a consolidated basis, balance sheets and cash flow statements for the succeeding twenty-four (24) months, with such projections to be on a monthly basis;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the Borrowers; andBorrower;
Appears in 1 contract
Samples: Intercreditor Agreement (Prentice Capital Management, LP)
Financial Statements, Certificates and Information. The Borrowers will deliver to the LendersAdministrative Agent and each of the Lenders the following:
(a) as soon as practicable, but, in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrowers, the consolidated and consolidating balance sheets of the Parent Borrowers and their Subsidiaries as at the end of such year, statements of cash flows, and the related consolidated and consolidating statements of operations, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated and consolidating financial statements to be in reasonable detail, prepared prepared, in accordance with GAAP and, with respect to the consolidated financial statements, and Certified by the Accountants. In addition, simultaneously therewith, the Borrowers will use their best efforts to provide the Lenders with a written statement from such Accountants to the effect that the Borrowers are in compliance with the covenants set forth in ss.9 hereof, and that, in making thE examination necessary to said certification, nothing has come to the attention of such Accountants that would indicate that any Default or Event of Default exists, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; PROVIDED, that such Accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowers, copies of the consolidated and consolidating balance sheets and statement of operations of the Parent Borrowers and their Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related statement of cash flows, all in reasonable detail and prepared in accordance with GAAP, GAAP with a certification by the principal financial or accounting officer of each Borrower the Borrowers (the "CFO") that the such consolidated financial statements are were prepared in accordance with GAAP and fairly present the consolidated financial condition of the Borrowers and their Subsidiaries as at the close of business on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, (i) a statement in the form of EXHIBIT D C hereto (the "Compliance CertificateCOMPLIANCE CERTIFICATE") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7ss.7, 8 ss.8 and 9 hereof, as ss.9 hereof As of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT that, if the Borrowers shall at the time of issuance of such certificate have or at any other time obtain knowledge of any Default or Event of Default, the Borrowers shall will include in such certificate Compliance Certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretothereto and attaching, in the event such Default or Event of Default relates to Environmental Matters, a certificate in the form attached hereto as EXHIBIT D (the "ENVIRONMENTAL COMPLIANCE CERTIFICATE");
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the Parent or any of the Borrowers to the extent the same are not available on XXXXX;
(e) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, copies of the Borrowers' revenue, EBITDA and pre-tax reports, all in reasonable detail and prepared in accordance with GAAP;
(f) as soon as practicable, but in any event not later than fifteen (15) days prior to the commencement of each fiscal year of the Borrowers and the Excluded Subsidiaries, a copy of the annual budget, projections and business plan for the Borrowers and the Excluded Subsidiaries for such fiscal year; and
(g) from time to time such other financial data and other information (including accountants' management letters) as the Lenders may reasonably request. The Borrowers hereby authorize the Lenders to disclose any information obtained pursuant to this Credit Agreement to all appropriate governmental regulatory authorities where required by law; PROVIDED, HOWEVER, that the Lenders shall, to the extent practicable and allowable under law, notify the Borrowers within a reasonable period prior to the time any such disclosure is made; and PROVIDED FURTHER, this authorization shall not be deemed to be a waiver of any rights to object to the disclosure by the Lenders of any such information which any Borrower has or may have under the federal Right to Financial Privacy Act of 1978, as in effect from time to time.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Casella Waste Systems Inc)
Financial Statements, Certificates and Information. The Borrowers will deliver or cause to be delivered to the Agent with sufficient copies for each of the Lenders:
(a) as soon as practicablewithin five (5) days of the filing of REIT’s Form 10-K with the SEC, butif applicable, but in any event not later than 90 one hundred twenty (120) days after the end of each fiscal year calendar year, the audited Consolidated balance sheet of the Parent, the consolidated REIT and consolidating balance sheets of the Parent as its Subsidiaries at the end of such year, statements of cash flows, and the related audited consolidated and consolidating statements of operationsincome, each changes in capital and cash flows for such year, setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, together with respect a certification by an Authorized Officer or the chief financial officer or accounting officer of the REIT that the information contained in such financial statements fairly presents in all material respects the financial position of the REIT and its Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the consolidated financial statements, Certified scope of the audit by the Accountantsa member firm of KPMG International Cooperative or another nationally recognized accounting firm reasonably approved by Agent;
(b) as soon as practicablewithin five (5) days of the filing of REIT’s Form 10-Q with the SEC, if applicable, but in any event not later than 45 sixty (60) days after the end of each fiscal calendar quarter of the Borrowerseach year, copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent REIT and its Subsidiaries, as at the end of such quarter, subject to year end adjustments, and the related statement unaudited consolidated statements of income and cash flowsflows for the portion of the REIT’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by an Authorized Officer or the principal chief financial officer or accounting officer of each Borrower (the "CFO") REIT that the consolidated information contained in such financial statements are prepared fairly presents in accordance with GAAP and fairly present all material respects the consolidated financial condition position of the Borrowers as at the close of business REIT and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement (a “Compliance Certificate”) certified by an Authorized Officer or the chief financial officer or chief accounting officer of REIT in the form of EXHIBIT D Exhibit G hereto (or in such other form as the "Compliance Certificate"Agent may approve from time to time) certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing compliance or non-compliance (as the case may be) with the covenants contained in §9 setting forth reconciliations to reflect changes in GAAP since the Balance Sheet Date, with the Compliance Certificate for the quarter ending September 30, 2011 being prepared by the REIT on a good faith estimated basis. REIT shall submit with the Compliance Certificate a Borrowing Base Certificate in the form of Exhibit F attached hereto pursuant to which the REIT shall calculate the amount of the Borrowing Base Availability as of the end of the immediately preceding calendar quarter. All income, expense and value associated with Real Estate or other Investments disposed of during any quarter will be eliminated from calculations, where applicable. The Compliance Certificate shall be accompanied by copies of the statements of Net Operating Income for such compliancecalendar quarter for each of the Mortgaged Properties, PROVIDED THAT if prepared on a basis consistent with the Borrowers shall at statements furnished to the time Agent prior to the date hereof and otherwise in form and substance reasonably satisfactory to the Agent, together with a certification by an Authorized Officer or the chief financial officer or chief accounting officer of issuance of such certificate have knowledge of any Default or Event of Default, REIT that the Borrowers shall include information contained in such certificate or otherwise deliver forthwith to statement fairly presents in all material respects Net Operating Income of the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoMortgaged Properties for such periods;
(d) annually or at such other time as may be reasonably requested by simultaneously with the Administrative Agent, copies delivery of the financial statementsstatements referred to in clause (a) above, financial projections, annual budget, variance reports and business plan concerning the statement of all contingent liabilities involving amounts of $10,000,000 or more of the Borrowers and their Subsidiaries which are not reflected in substantially such financial statements or referred to in the same form notes thereto (including, without limitation, all guaranties, endorsements and other contingent obligations in which such information is supplied to the boards of directors respect of the Borrowersindebtedness of others, and obligations to reimburse the issuer in respect of any letters of credit);
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, (i) a Rent Roll for each of the Mortgaged Properties and a summary thereof in form reasonably satisfactory to Agent as of the end of each calendar quarter (including the fourth calendar quarter in each year), together with a listing of each tenant that has taken occupancy of such Mortgaged Property during each calendar quarter (including the fourth calendar quarter in each year), and (ii) a copy of each material Lease or material amendment to any material Lease entered into with respect to a Mortgaged Property during such calendar quarter (including the fourth calendar quarter in each year);
(f) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, to the extent not included in public filings by or on behalf of REIT, and upon request by Agent, a statement (i) listing the material Real Estate owned by the Borrowers and their Subsidiaries (or in which the Borrowers or their Subsidiaries owns an interest) and stating the location thereof, the date acquired and the acquisition cost, (ii) listing the Indebtedness of the Borrowers and their Subsidiaries (excluding Indebtedness of the type described in §8.1(b)-(e)), which statement shall include, without limitation, a statement of the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date and any extension options, the interest rate, the collateral provided for such Indebtedness and whether such Indebtedness is recourse or non-recourse, and (iii) listing the properties of the Borrowers and their Subsidiaries which are Development Properties and providing a brief summary of the status of such development;
(g) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC nature, reports or proxy statements sent to the stockholders owners of Parent Borrower or REIT;
(h) to the extent requested by Agent, copies of all annual federal income tax returns and amendments thereto of the Borrowers;
(i) promptly upon the filing hereof, copies of any registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent) and any annual, quarterly or monthly reports and other statements and reports which Parent Borrower or REIT shall file with the SEC;
(j) to the extent requested by Agent, evidence reasonably satisfactory to Agent of the timely payment of all real estate taxes for the Mortgaged Properties;
(k) not later than January 31 of each year, a budget and business plan for the Borrowers and their Subsidiaries for such calendar year; and
(l) from time to time such other financial data and information in the possession of the Borrowers or their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against the Borrowers and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting the Borrowers) as the Agent may reasonably request. Any material to be delivered pursuant to this §7.4 may be delivered electronically directly to Agent and the Lenders provided that such material is in a format reasonably acceptable to Agent, and such material shall be deemed to have been delivered to Agent and the Lenders upon Agent’s receipt thereof. Upon the request of Agent, Borrowers shall deliver paper copies thereof to Agent and the Lenders. Borrowers authorize Agent and Arrangers to disseminate any such materials through the use of Intralinks, SyndTrak or any other electronic information dissemination system, and the Borrowers release Agent and the Lenders from any liability in connection therewith.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the Parent, the consolidated and consolidating balance sheets sheet of the Parent and its Subsidiaries and the consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, with respect and certified, without qualification and without an expression of uncertainty as to the consolidated financial statementsability of the Parent, Certified the Borrower or any of their Subsidiaries to continue as going concerns, by the AccountantsPricewaterhouseCoopers or any other independent certified public accountant engaged pursuant to Section 6.3(c);
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Parent, copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent and its Subsidiaries and the unaudited consolidating balance sheet of the Parent and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Parent's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of each Borrower (the "CFO") Parent that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Parent and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) Within thirty (30) days of receipt of any audit committee report prepared by the Borrower's accountants, if there are any reportable events resulting in any discussion in the sections of such report entitled "Errors or Irregularities", "Illegal Acts" and "Misstatements Due to Fraud", the Borrower will provide copies of such sections to the Administrative Agent;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Parent in substantially the form of EXHIBIT Exhibit D hereto (the a "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in Section 8 and (if applicable) reconciliations to reflect changes in GAAP since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) no later than the tenth (10th) Business Day of each month, or, following the occurrence and during the continuance of an Event of Default, at such other times as the Administrative Agent may request, a certificate (the "Pledged Collateral Certificate") substantially in the form of Exhibit E attached hereto, signed by an officer of the Borrower, certifying compliance with the collateral coverage requirement set forth in Section 6.8 and demonstrating, in detail satisfactory to the Administrative Agent, the fair market value (as valued by Bloomberg or, if Bloomberg is not available, another quotation service reasonably acceptable to the Administrative Agent) of the Qualified Securities and the amount of cash on deposit in the Deposit Account as of the last Business Day of the immediately preceding month;
(f) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersBorrower;
(g) from time to time such other financial data and information as the Administrative Agent or any Lender may reasonably request; andIn the event that GAAP requires the financial statements required under clauses (a) and (b) above to be presented on a combined basis, the Borrower shall deliver such combined and combining statements in lieu of the required consolidated and consolidating financial statements.
Appears in 1 contract
Samples: Letter of Credit Reimbursement and Pledge Agreement (Montpelier Re Holdings LTD)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 one hundred twenty (120) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, with respect and all such consolidated statements to be certified without qualification by Ernst & Young LLP or by other independent certified public accountants satisfactory to the consolidated financial statements, Certified by the AccountantsAdministrative Agent;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) as soon as practicable, but in any event within thirty (30) days after the end of each month in each fiscal year of the Borrower, unaudited monthly consolidated financial statements of the Borrower and its Subsidiaries for such month and unaudited monthly consolidating financial statements of the Borrower and its Subsidiaries for such month, each prepared in accordance with generally accepted accounting principles;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit C hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in ss.11 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders equity holders or debt holders of the BorrowersBorrower;
(f) as soon as the same become available and in any event not later than January 31 of each year, an annual business plan of the Borrower and its Subsidiaries on a consolidated basis for such fiscal year and financial projections for the Borrower and its Subsidiaries on a consolidated basis for the next succeeding three (3) fiscal years, including statements of income and cash flow and balance sheets and the assumptions underlying such plan, all such statements to be in reasonable detail and certified by the chief financial officer of the Borrower as a reasonable forecast of the anticipated financial condition of the Borrower and its Subsidiaries on a consolidated basis and business segment basis in respect of such fiscal years; and
(g) from time to time such other financial data and information (including accountants', management letters) as the Administrative Agent or any Bank may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver and cause BPC to deliver to the Lenders:Agent (with copies for each Bank):
(a) as soon as practicable, but, but in any event not later than 90 one hundred (100) days after the end of each of its fiscal year years:
(i) in the case of the ParentBorrower, the audited consolidated and consolidating balance sheets sheet of the Parent as Borrower and its subsidiaries at the end of such year, and the related audited consolidated statements of operations, owner's equity (deficit) and cash flowsflows for the year then ended, in each case with supplemental consolidating schedules provided by the Borrower if requested by the Agent; and
(ii) in the case of BPC, the audited consolidated balance sheet of BPC and its subsidiaries (including, without limitation, the Borrower and its subsidiaries) at the end of such year, and the related audited consolidated and consolidating statements of operations, owner's equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules provided by BPC if requested by the Agent; each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP GAAP, and, with respect to the consolidated financial statementsin each case, Certified accompanied by an auditor's report prepared without qualification by the Accountants, together with a written statement from such Accountants to the effect that they have read a copy of this Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any default, Default, Event of Default or of any facts or circumstances that would cause BPC not to continue to qualify as a REIT for federal income tax purposes, or, if such accountants shall have obtained knowledge of any then existing default, Default, Event of Default or such facts or circumstances, they shall make disclosure thereof in such statement;
(b) as soon as practicable, but in any event not later than 45 forty- five (45) days after the end of each of its fiscal quarter quarters:
(i) in the case of the BorrowersBorrower, copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Borrower and its subsidiaries as at the end of such quarter, subject to and the related unaudited consolidated statements of operations, owner's equity (deficit) and cash flows for the portion of the Borrower's fiscal year end adjustmentsthen elapsed, with supplemental consolidating schedules provided by the Borrower if requested by the Agent; and
(ii) in the case of BPC, copies of the unaudited consolidated balance sheet of BPC and its subsidiaries (including, without limitation, the Borrower and its subsidiaries) as at the end of such quarter, and the related statement unaudited consolidated statements of operations, owner's equity (deficit) and cash flows, flows for the portion of such Guarantor's fiscal year then elapsed; all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") or BPC, as applicable, that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers Borrower or BPC (as at the close of business case may be) and its subsidiaries on the date thereof (subject to year-end adjustments) and the results adjustments none of operations for the period then endedwhich shall be materially adverse);
(c) as soon as practicable, but in any event not later than one hundred (100) days after the end of each of its fiscal years, (i) audited statements of Net Operating Income and outstanding Indebtedness as at the end of such fiscal year and for the fiscal year then ended in respect of each Real Estate Asset (including each Unencumbered Asset), each prepared in accordance with GAAP (but without related financial statement footnote disclosures included in the Borrower's or BPC's financial statements) consistent with the definitions of Net Operating Income and outstanding Indebtedness used in this Agreement and accompanied by an auditor's report prepared without qualification by the Accountants and (ii) a summary rent roll in respect of each Unencumbered Asset, certified by the chief financial officer of the Borrower as true and correct;
(d) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the fiscal quarters of the Borrower, (i) copies of the unaudited statements of Net Operating Income and outstanding Indebtedness as at the end of such quarter and for the portion of the fiscal year then elapsed in respect of each Real Estate Asset (including each Unencumbered Asset), each prepared in accordance with GAAP (but without related financial statement footnote disclosures included in the Borrower's or BPC's financial statements) consistent with the definitions of Net Operating Income and outstanding Indebtedness used in this Agreement and certified by the chief financial officer of the Borrower to present fairly the Net Operating Income and outstanding Indebtedness in respect of each such Real Estate Asset and (ii) an occupancy analysis in respect of each Real Estate Asset (including each Unencumbered Asset) certified by the chief financial officer of the Borrower to be true and complete;
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement in the form of EXHIBIT Exhibit D hereto (the "Compliance Certificate") certified signed by the CFO that chief financial officer of the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereofBorrower or BPC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date; and, in the case of the end of the applicable period and Borrower, setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if compliance with the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include covenants contained in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoss.ss.
9.1 through 9.7;
(df) annually promptly as they become available, a copy of each report (including any so-called management letters) submitted to the Borrower, BPC, or at such any other time as may be reasonably requested Guarantor or any of their respective subsidiaries by the Administrative AgentAccountants in connection with each annual audit of the books of the Borrower, BPC, or any other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase of the business of the Borrower, BPC or any other Guarantor or any such subsidiary;
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature sent to the financial statementsholders of any Indebtedness of the Borrower (other than the Loans) for borrowed money, to the extent that the information or disclosure contained in such material refers to or could reasonably be expected to have a material adverse effect on the business, assets, financial projectionscondition or prospects, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors or operations of the BorrowersBorrower;
(eh) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of BPC;
(i) as soon as practicable, but in any event not later than one hundred (100) days after the Borrowersend of each fiscal year of BPC, copies of the Form 10-K statement filed by BPC with the SEC for such fiscal year, and as soon as practicable, but in any event not later than fifty (50) days after the end of each fiscal quarter of BPC, copies of the Form 10-Q statement filed by BPC with the SEC for such fiscal quarter, provided that, in either case, if the SEC has granted an extension for the filing of such statements, BPC shall deliver such statements to the Agent within ten (10) days after the filing thereof with the SEC;
(j) from time to time such other financial data and information about the Borrower, BPC, the other Guarantors, their respective Subsidiaries, the Real Estate Assets and the Partially-Owned Real Estate Holding Entities as the Agent or any Bank may reasonably request, including without limitation complete rent rolls, existing environmental reports, and insurance certificates with respect to the Real Estate Assets (including the Unencumbered Assets); and
(k) in the case of the Borrower, BPC, and each other Guarantor, as soon as practicable, but in any event not later than ninety (90) days after the end of each of their respective fiscal years, pro forma projections for the next three fiscal years.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver and cause BPI to (and BPI will) deliver (as applicable) to the LendersAgent:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBPI, the audited consolidated balance sheet of BPI and consolidating balance sheets of the Parent as its Subsidiaries at the end of such year, statements of cash flows, and the related audited consolidated and consolidating statements of operationsincome, changes in shareholder’s equity and cash flows for the year then ended, in each case, setting forth in comparative form the figures as of the end of and for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP which may be provided by inclusion in the Form 10-K of BPI filed with the SEC for such period provided pursuant to clause (g) below), and, in each case, accompanied by an auditor’s report prepared without qualification by the Accountants other than a qualification solely with respect to internal controls over financial reporting as required under Section 404 of the consolidated financial statements, Certified by the AccountantsSarbanes Oxley Act;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each of its March 31, June 30 and September 30 fiscal quarter of the Borrowersquarters, copies of the unaudited consolidated balance sheet of BPI and consolidating balance sheets and statement of operations of the Parent its Subsidiaries, as at the end of such quarter, subject to year end adjustments, and the related statement unaudited consolidated statements of income, changes in shareholders’ equity and cash flowsflows for the portion of BPI’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPGAAP (which may be provided by inclusion in the Form 10-Q of BPI filed with the SEC for such period provided pursuant to clause (g) below), together with a certification by an Authorized Officer that is the principal financial or accounting officer of each Borrower (the "CFO") BPI that the consolidated information contained in such financial statements are prepared in accordance with GAAP fairly presents the financial position of BPI and fairly present the consolidated financial condition of the Borrowers as at the close of business its Subsidiaries on the date thereof (subject to year-end adjustments) and the results adjustments none of operations for the period then endedwhich shall be materially adverse);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, (i) a statement Compliance Certificate in the form of EXHIBIT D Exhibit C-1 hereto signed by an Authorized Officer that is the principal financial or accounting officer of BPI, which Compliance Certificate and each other Compliance Certificate required pursuant to the terms of this Agreement shall be delivered by electronic communication, including fax or email, unless the Agent or a Bank requests executed originals, and each such Compliance Certificate so delivered shall be deemed to be an original authentic counterpart thereof for all purposes, and (if applicable) reconciliations to reflect changes in GAAP since the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance date of such certificate have knowledge financial statements and (ii) a quarterly worksheet in the form of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoExhibit C-1A;
(d) annually promptly as they become available, a copy of each report (including any so-called management letters) submitted to the Borrower or at such other time as may be reasonably requested BPI by the Administrative Agent, copies Accountants in connection with each annual audit of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors books of the BorrowersBorrower or BPI by such Accountants or in connection with any interim audit thereof pertaining to any phase of the business of the Borrower or BPI;
(e) contemporaneously withwith (or promptly after) the filing or mailing thereof, copies of all material of a financial nature sent to the holders of any Indebtedness of the Borrower (other than the Loans) for borrowed money, to the extent that the information or disclosure contained in such material refers to or could reasonably be expected to have a material adverse effect on the business, assets, financial condition or prospects, or promptly followingoperations of BPLP, BPI or, taken as a whole, the BP Group;
(f) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent to the stockholders of BPI;
(g) as soon as practicable, but in any event not later than ninety (90) days after the Borrowersend of each fiscal year of BPI, copies of the Form 10-K statement filed by BPI with the SEC for such fiscal year, and as soon as practicable, but in any event not later than fifty (50) days after the end of each fiscal quarter of BPI copies of the Form 10-Q statement filed by BPI with the SEC for such fiscal quarter, provided that, in either case, if the SEC has granted an extension for the filing of such statements, BPI shall deliver such statements to the Agent within ten (10) days after the filing thereof with the SEC;
(h) from time to time such other financial data and information about the Borrower, BPI, their respective Subsidiaries, the Real Estate Assets and the Partially-Owned Entities as the Agent or any Bank (through the Agent) may reasonably request, including, without limitation, complete rent rolls, existing environmental reports, and insurance certificates with respect to the Real Estate Assets;
(i) Intentionally Deleted; and
(j) as soon as practicable, but in any event not later than ninety (90) days after the end of the fiscal year of BPLP, the audited balance sheet of BPLP at the end of each such year, and the related audited statements of income, changes in partners’ capital and cash flows for the year then ended, in each case setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by an Authorized Officer that is the principal financial or accounting officer of BPLP that the information contained in such financial statements fairly presents the financial position of BPLP on the date thereof, and as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the March 31, June 30 and September 30 fiscal quarters of BPLP, the unaudited balance sheet of BPLP at the end of each such quarter, and the related unaudited statements of income, changes in partners’ capital and cash flows for the quarter then ended, in each case setting forth in comparative form the figures for the previous fiscal quarter and all such statements to be in reasonable detail, prepared in accordance with GAAP, together with a certification by an Authorized Officer that is the principal financial or accounting officer of BPLP that the information contained in such financial statements fairly presents the financial position of BPLP on the date thereof (subject to year-end adjustments none of which shall be materially adverse). Notwithstanding any provision of this §8.4, for so long as BPI is publicly traded on the New York Stock Exchange, the Borrower shall be deemed to have satisfied its obligations under subsections (a), (b), (f), (g) and (j) of this §8.4 by timely filing its Form 10-Q and Form 10-K with the SEC for each applicable period, provided that, with respect to subsections (a) and (b) above, the Borrower has delivered to the Agent within the time periods required therefor and referred to in subsections (a) and (b), the statement required by subsection (c) above.
Appears in 1 contract
Samples: Credit Agreement (Boston Properties LTD Partnership)
Financial Statements, Certificates and Information. The Borrowers Borrower will deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries and the consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statements statement of operationsincome and consolidating statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGenerally Accepted Accounting Principles, with respect and certified without qualification by PricewaterhouseCoopers LLP or by another “big four” certified public accounting firm or by other independent certified public accountants satisfactory to the consolidated financial statementsAdministrative Agent, Certified by together with a written statement from such accountants to the Accountantseffect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of the Borrower and its Subsidiaries and the unaudited consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow and consolidating statement of income and consolidating statement of cash flow for the portion of the Borrower’s fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPGenerally Accepted Accounting Principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to as soon as practicable, but in any event within thirty (a30) and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of days after the end of each month in each fiscal year of the applicable period Borrower, unaudited monthly consolidated financial statements of the Borrower and setting forth its Subsidiaries for such month and unaudited monthly consolidating financial statements of the Borrower and its Subsidiaries for such month, each prepared in reasonable detail computations evidencing such complianceaccordance with Generally Accepted Accounting Principles, PROVIDED THAT if together with a certification by the Borrowers shall at Controller, Senior Vice President of Finance or other principal financial or accounting officer of the time of issuance of such certificate have knowledge of any Default or Event of Default, Borrower that the Borrowers shall include information contained in such certificate or otherwise deliver forthwith financial statements fairly presents the financial condition of the Borrower and its Subsidiaries on the date thereof (subject to the Lenders a certificate specifying the nature quarterly and period of existence thereof and what action the Borrowers propose to take with respect theretoyear-end adjustments);
(d) annually or at such other time as may be reasonably requested by within ten (10) days following the Administrative Agentdate hereof, copies the Borrower shall deliver to the Lenders projections of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors operating budgets of the BorrowersBorrower and its Subsidiaries on a consolidated basis, balance sheets and cash flow statements for the succeeding twenty-four (24) months, with such projections to be on a monthly basis;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the Borrowers; andBorrower;
Appears in 1 contract
Samples: Intercreditor and Lien Subordination Agreement (Whitehall Jewellers Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower -------------------------------------------------- will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, (i) the consolidated and consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP generally accepted accounting principles, certified without qualification by a nationally recognized independent certified public accounting firm that is currently known as a "Big Five" accounting firm or by another independent certified public accounting firm satisfactory to the Agent, together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks -------- for failure to obtain knowledge of any Default or Event of Default; and, with respect to provided further that the consolidated financial statements, Certified information required by this -------- ------- paragraph may be satisfied by delivery by the AccountantsBorrower within such ninety (90) day period of the Borrower's Form 10-K for such fiscal year and (ii) the unaudited Consolidating balance sheet as at the end of such year and the related unaudited Consolidating statement of income for such year, each setting forth in comparative form the figures for the previous fiscal year and all such unaudited Consolidating statements to be in reasonable detail and prepared in accordance with generally accepted accounting principles;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowers, copies fiscal quarters of the Borrower, (i) the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries as at the end of such quarter, subject to year end adjustments, quarter and the related unaudited consolidated statement of income and unaudited consolidated statement of cash flowsflow for the portion of the Borrower's fiscal year then elapsed, and (ii) the unaudited Consolidating balance sheet as at the end of such quarter and the related unaudited Consolidating statement of income for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments); provided that the consolidated -------- information required by this paragraph may be satisfied by the Borrower within such forty-five (45) and day period of the results of operations Borrower's Form 10-Q for the period then endedsuch fiscal quarter;
(c) as soon as practicable, but in any event no later than ninety (90) days after the end of each fiscal year of the Borrower, a management prepared budget for the next fiscal year of the Borrower.
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit E hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are and setting forth in reasonable detail ------- - computations evidencing compliance with the covenants contained in ss.ss.7, 8 (S)11 and 9 hereof, as of (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) contemporaneously withas soon as practicable, or promptly following, but in any event not later than forty-five (45) days after the filing or mailing thereofend of any fiscal quarter, copies of all publicly available material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersBorrower during such fiscal quarter;
(f) if any Revolving Credit Loans are outstanding or requested, within twenty (20) days after the end of each calendar month or at such earlier time as the Agent may reasonably request, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month or other date so requested by the Agent;
(g) if any Revolving Credit Loans are outstanding or requested, within twenty (20) days after the end of each calendar month, an Accounts Receivable aging report; and
(h) from time to time such other financial data and information (including accountants management letters) as the Agent or any Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Mapics Inc)
Financial Statements, Certificates and Information. The Borrowers Ryder will deliver to each of the LendersBanks, the Issuing Bank and the Agents:
(a) as soon as practicable, but, in any event not later than 90 one hundred twenty (120) days after the end of each fiscal year of the ParentRyder, the consolidated balance sheet of Ryder and consolidating balance sheets of the Parent its Consolidated Subsidiaries as at the end of such year, and the consolidated statements of income and cash flows, flows for Ryder and its Consolidated Subsidiaries for the related consolidated and consolidating statements of operationsfiscal year then ended, each setting forth in comparative form the figures for the previous fiscal year, all such consolidated and consolidating financial statements to be in reasonable detail, prepared prepared, in accordance with GAAP andand certified by KPMG LLP or by other independent certified public accountants of nationally recognized standing selected by Ryder. In addition, within one hundred twenty (120) days of the end of each such fiscal year, Ryder shall provide the Banks with respect a written statement from such accountants to the consolidated financial statementseffect that they have read a copy of this Agreement, Certified by and that, in making the Accountantsexamination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 sixty (60) days after the end of each fiscal quarter of the Borrowersfirst three fiscal quarters of each fiscal year of Ryder, copies of the consolidated and consolidating balance sheets of Ryder and statement of operations of the Parent its Consolidated Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related statement consolidated statements of income and cash flowsflows for the portion of the fiscal year then ended, all in reasonable detail and prepared in accordance with GAAP, GAAP (to the extent GAAP is applicable to interim unaudited financial statements) with a certification by the principal financial or accounting officer of each Borrower (the "CFO") Ryder that the consolidated financial statements are prepared in accordance with GAAP (to the extent GAAP is applicable to interim unaudited financial statements) and fairly present the consolidated financial condition of the Borrowers Ryder and its Consolidated Subsidiaries on a consolidated basis as at the close of business on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, a statement certificate in the form of EXHIBIT D Exhibit C hereto (the "Compliance Certificate") certified signed by the CFO principal financial officer, treasurer or assistant treasurer of Ryder, stating that the Borrowers Ryder and its Consolidated Subsidiaries are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, Section 10 hereof as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any compliance and certifying (i) no Default or Event of DefaultDefault exists or if a Default or Event of Default shall then exist, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto(ii) such other matters as are set forth therein;
(d) annually or at such other time as may be reasonably requested by soon as practicable but, in any event, within thirty (30) Business Days after the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or mailing issuance thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersRyder or any of its Subsidiaries generally; and
(e) from time to time, and with reasonable promptness, such other financial data and other information as the Banks may reasonably request. The Borrowers hereby authorize each Bank to disclose any information obtained pursuant to this Agreement to all appropriate governmental regulatory authorities where required by law.
Appears in 1 contract
Samples: Global Revolving Credit Agreement (Ryder System Inc)
Financial Statements, Certificates and Information. The Borrowers Borrower will -------------------------------------------------- deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, the consolidated and consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, and certified without qualification as to scope of audit by internationally recognized ("Big 5") certified public accountants; provided -------- that, notwithstanding the foregoing, such financial statements shall not include FINOVA Group's financial position, results or statements regardless of whether consolidation with respect to the consolidated financial statements, Certified FINOVA Group is required by the AccountantsGAAP;
(b) as soon as practicable, but in any event not later than 45 forty- five (45) days after the end of each fiscal quarter of the Borrowersfirst three fiscal quarters of the Borrower's fiscal year, copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow for the portion of such fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, with and accompanied by a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and ); provided that, -------- notwithstanding the foregoing, such financial statements shall not include FINOVA Group's financial position, results or statements regardless of operations for the period then endedwhether consolidation with FINOVA Group is required by GAAP;
(c) simultaneously as soon as practicable, but in any event not later than ten (10) Business Days after the Borrower's receipt thereof, the consolidated balance sheet of FINOVA Group, as at the end of each fiscal year, and the related consolidated statement of income and consolidated statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated statements to be in reasonable detail, prepared in accordance with the delivery GAAP, and certified without qualification as to scope of the financial statements referred to in audit by internationally recognized (a) and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance CertificateBig 5") certified public accountants. The Borrower hereby agrees that it shall require FINOVA Group to deliver such financial statements pursuant to the FINOVA Loan Documents within ninety (90) days after the end of each fiscal year of FINOVA Group;
(d) as soon as practicable, but in any event not later than ten (10) Business Days after the Borrower's receipt thereof, copies of the unaudited consolidated balance sheet of FINOVA Group as at the end of each of the first three fiscal quarters of FINOVA Group's fiscal year, and the related consolidated statement of income and consolidated statement of cash flow for the portion of such fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP. The Borrower hereby agrees that it shall require FINOVA Group to deliver such financial statements pursuant to the FINOVA Loan Documents within forty-five (45) days after the end of each of the first three fiscal quarters of FINOVA Group's fiscal year;
(e) as soon as practicable, but in any event not later than ten (10) Business Days after the Borrower's receipt thereof, the annual financial projections of FINOVA Group and its Subsidiaries for at least the remaining term of the Loan, including, at a minimum, projected detailed consolidated balance sheets and income and cash flow statements of FINOVA Group and its Subsidiaries for the two next succeeding fiscal years, and a breakdown of such projections by fiscal quarter for the CFO next succeeding fiscal year. The Borrower hereby agrees that it shall require FINOVA Group to deliver such projections pursuant to the Borrowers are FINOVA Loan Documents within twenty (20) days prior to the end of each fiscal year of FINOVA Group;
(f) as soon as practicable, but in compliance with any event not later than ten (10) Business Days after the covenants contained Borrower's receipt thereof, a report of FINOVA Group and its Subsidiaries' investment in ss.ss.7financing transactions (including discontinued operations), 8 by line of business, accrual status and 9 hereofimpaired/unimpaired status, as of the end of such fiscal quarter, the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if reserve for credit losses as of the Borrowers shall at the time of issuance end of such certificate have knowledge fiscal quarter and an analysis of any Default or Event of Default, the Borrowers write-offs and recoveries for such fiscal quarter. The Borrower hereby agrees that it shall include in require FINOVA Group to deliver such certificate or otherwise deliver forthwith report pursuant to the Lenders a certificate specifying FINOVA Loan Documents within forty-five (45) days after the nature and period end of existence thereof and what action the Borrowers propose to take with respect theretoeach fiscal quarter of FINOVA Group;
(dh) annually or at such other time as may be reasonably requested promptly upon receipt by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, the filing or mailing Borrower thereof, copies of all material of a financial nature filed with reporting information not otherwise delivered hereunder that the SEC or sent Borrower receives from FNV Capital pursuant to the stockholders FINOVA Loan Documents; and
(i) from time to time such other financial data and information of the Borrowers; andBorrower (including accountants' management letters) as the Administrative Agent or any Lender may reasonably request.
Appears in 1 contract
Samples: Loan Agreement (Finova Group Inc)
Financial Statements, Certificates and Information. The Borrowers Loan Parties will deliver (or cause to be delivered) to each of the Lenders:
(ai) as soon as practicable, but, but in any event not later than 90 one hundred twenty (120) days after the end of each fiscal year of the ParentBorrower, the audited consolidated and consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries as at the end of such year, and the related audited statements of income and statements of cash flows, and the related consolidated and consolidating statements of operationsflow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, with respect and certified, without qualification and without an expression of uncertainty as to the consolidated financial statementsability of the Borrower or any of its Subsidiaries to continue as going concerns, Certified by KPMG LLP or by other independent certified public accountants satisfactory to the Accountants;Administrative Agent; and
(bii) as soon as practicable, but in any event not later than 45 one hundred twenty (120) days after the end of each fiscal quarter year of CAI, the audited consolidated balance sheet of CAI and its Subsidiaries as at the end of such year, and the related audited statements of income and statements of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated statements to be in reasonable detail, prepared in accordance with GAAP, and certified, without qualification and without an expression of uncertainty as to the ability of any Loan Party or any of its Subsidiaries to continue as going concerns, by KPMG LLP or by other independent certified public accountants satisfactory to the Administrative Agent;
(i) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the Borrowersfirst three fiscal quarters of each fiscal year of the Borrower and its Subsidiaries, copies of the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related statement statements of income and statements of cash flowsflow for the portion of the fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(ii) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of CAI and its Subsidiaries, copies of the unaudited consolidated balance sheet of CAI and its Subsidiaries as at the end of such quarter, and the results related statements of operations income and statements of cash flow for the period portion of the fiscal year then endedelapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of CAI that the information contained in such financial statements fairly presents the financial position of CAI and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) upon the reasonable request of the Administrative Agent, the Borrower shall provide consolidating financial statements of the type referred to in subsections (a) and (b) above for (i) each Guarantor (other than CAI) and (ii) the non-Guarantor Subsidiaries of the Borrower on an aggregated basis (i.e., consolidating with respect to the group of non-Guarantor Subsidiaries), all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of such Person that the information contained in such consolidating financial statements fairly presents the financial position of each of the relevant Person(s) on the date thereof (subject, in the case of those financial statements referred to in subsection (b), to year-end adjustments);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT Exhibit D hereto (the "a “Compliance Certificate"”) certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenants contained in §10 and (if applicable) reconciliations to reflect changes in GAAP since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoBalance Sheet Date;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(ei) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all public filings containing material of a financial nature filed with the SEC Securities and Exchange Commission or with any national securities exchange or sent to the stockholders of CAI or any of its respective Subsidiaries and (ii) promptly, and in any event within five (5) Business Days after receipt thereof by CAI or any of its Subsidiaries, copies of each public notice or other public correspondence received from the BorrowersSecurities and Exchange Commission or any national securities exchange concerning any investigation or possible investigation or other inquiry by such agency regarding any financial or other operational results of any Loan Party or any of its respective Subsidiaries which could reasonably be expected to have a Material Adverse Effect;
(f) within thirty (30) days of the end of each calendar month and, in any case, simultaneously with the delivery of a Loan Request in accordance with §2.9, and at such other times as the Administrative Agent may reasonably request, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month, the date of such Loan Request or other date so requested by the Administrative Agent, as the case may be;
(g) simultaneously with the delivery of the financial statements referred to in subsection (f) above, an equipment report with respect to the Eligible Railcars, in form and detail reasonably satisfactory to the Administrative Agent, setting forth (A) the aggregate number, aggregate Net Book Value and weighted average age of Eligible Railcars, type(s) of Eligible Railcars owned by the Borrower and its Subsidiaries, and an updated listing of the Eligible Railcars then included in the Borrowing Base, and (B) type(s) of lease(s) (e.g., net lease or full services lease), weighted average remaining duration of the leases to which the Eligible Railcars are subject and identification of each lease of an Eligible Railcar that either (x) permits the use of Railcars in Mexico and the credit rating of the related Lessee or (y) contains a condition or a restriction on a collateral assignment of such lease to the Administrative Agent, on behalf of the Secured Parties, that has not been satisfied;
(h) within ninety (90) days after the end of each fiscal year, projections of the annual operating budgets of the Borrower and its Subsidiaries on a consolidated basis, balance sheets and cash flow statements for next fiscal year;
(i) on each Appraisal Date, an equipment valuation (which may be a desk top appraisal) of the Eligible Railcars by a third party acceptable to the Administrative Agent and at the expense of the Borrower, which equipment valuation shall include a determination of the Aggregate Fair Market Value of all Eligible Railcars as of a recent date (but in any event as of a date not more than 90 days prior to such Appraisal Date); and
(j) from time to time such other financial data and information (including accountants’ management letters) as the Administrative Agent or any Lender may reasonably request. Each Loan Party hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders materials and/or information provided by or on behalf of such Loan Party or any of its Subsidiaries hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on DebtX 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 their securities) (each, a “Public Lender”). Each Loan Party hereby agrees that so long as such Loan Party is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (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,” such Loan Party shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer, the Swing Line Lender and the Lenders to treat Borrower Materials as not containing any material non-public information with respect to such Loan Party or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent Borrower Materials constitute Information, they shall be treated as set forth in §16.4); (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 the Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.” Notwithstanding the foregoing or anything to the contrary contained herein, no Loan Party shall be under any obligation to xxxx the Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Revolving Credit Agreement (CAI International, Inc.)
Financial Statements, Certificates and Information. The Borrowers Borrower will -------------------------------------------------- deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrower, (i) the consolidated and consolidating balance sheets sheet of the Parent Borrower and its Subsidiaries, as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP generally accepted accounting principles, certified without qualification by a nationally recognized independent certified public accounting firm that is currently known as a "Big Five" accounting firm or by another independent certified public accounting firm satisfactory to the Agent, together with a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Banks -------- for failure to obtain knowledge of any Default or Event of Default; and, with respect to provided further that the consolidated financial statements, Certified information required by this ---------------- paragraph may be satisfied by delivery by the AccountantsBorrower within such ninety (90) day period of the Borrower's Form 10-K for such fiscal year and (ii) the unaudited Consolidating balance sheet as at the end of such year and the related unaudited Consolidating statement of income for such year, each setting forth in comparative form the figures for the previous fiscal year and all such unaudited Consolidating statements to be in reasonable detail and prepared in accordance with generally accepted accounting principles;
(b) as soon as practicable, but in any event not later than 45 forty- five (45) days after the end of each fiscal quarter of the Borrowers, copies fiscal quarters of the Borrower, (i) the unaudited consolidated and consolidating balance sheets and statement of operations sheet of the Parent Borrower and its Subsidiaries as at the end of such quarter, subject to year end adjustments, quarter and the related unaudited consolidated statement of income and unaudited consolidated statement of cash flowsflow for the portion of the Borrower's fiscal year then elapsed, and (ii) the unaudited Consolidating balance sheet as at the end of such quarter and the related unaudited Consolidating statement of income for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments); provided that the consolidated -------- information required by this paragraph may be satisfied by the Borrower within such forty-five (45) and day period of the results of operations Borrower's Form 10-Q for the period then endedsuch fiscal quarter;
(c) as soon as practicable, but in any event no later than ninety (90) days after the end of each fiscal year of the Borrower, a management prepared budget for the next fiscal year of the Borrower.
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit E hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are and setting forth in reasonable detail ------- - computations evidencing compliance with the covenants contained in ss.ss.7, 8 (S)11 and 9 hereof, as of (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the BorrowersBalance Sheet Date;
(e) contemporaneously withas soon as practicable, or promptly following, but in any event not later than forty- five (45) days after the filing or mailing thereofend of any fiscal quarter, copies of all publicly available material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of the BorrowersBorrower during such fiscal quarter;
(f) if any Revolving Credit Loans are outstanding or requested, within twenty (20) days after the end of each calendar month or at such earlier time as the Agent may reasonably request, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month or other date so requested by the Agent;
(g) if any Revolving Credit Loans are outstanding or requested, within twenty (20) days after the end of each calendar month, an Accounts Receivable aging report; and
(h) from time to time such other financial data and information (including accountants management letters) as the Agent or any Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Mapics Inc)
Financial Statements, Certificates and Information. The Borrowers Credit Parties will deliver to the Administrative Agent and, upon request, to the Lenders:
(a) as soon as practicable, but, but in any event not no later than 90 ninety (90) days after the end of each fiscal year Fiscal Year,
i. the consolidated and consolidating balance sheet of the Parent, the consolidated Borrowers and consolidating balance sheets of the Parent their Restricted Subsidiaries, as at the end of such year, statements of cash flowsFiscal Year, and the related consolidated and consolidating statements of income or operations, cash flows and shareholders’ equity for such Fiscal Year, each setting forth in comparative form the figures for the previous fiscal year, Fiscal Year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP and, consistently applied and such consolidated and consolidating financial statements to be audited and accompanied by a report and opinion prepared in accordance with respect generally accepted auditing standards by independent certified public accountants reasonably satisfactory to the Administrative Agent and certified without qualification and without expression of uncertainty as to the ability of Parent, the Borrowers and their Restricted Subsidiaries to continue as going concerns (other than a “going concern” qualification resulting from an upcoming maturity under this Agreement or the Term Credit Agreement occurring within one year from the time of such opinion is delivered or a breach of Section 7.13 hereunder), together with a copy of their accountants’ management letter (if any) for such Fiscal Year and
ii. a Compliance Certificate duly executed by a Financial Officer of the Borrower Representative, which, among other things,
(A) attaches and certifies to the foregoing consolidated and consolidating financial statements, Certified by accountants statements, management letters and a management discussion and analysis prepared in connection with such financial statements,
(B) certifies that the Accountantsinformation contained in such consolidated and consolidating financial statements fairly presents in all material respects 103 the financial condition of Parent, the Borrowers and their Restricted Subsidiaries on the dates indicated therein,
(C) appends computations evidencing the Fixed Charge Coverage Ratio, the First Lien Net Leverage Ratio, and Excess Cash Flow, in each case, for the Reference Period ended as of the last day of such Fiscal Year and specifying whether the Credit Parties have complied with Sections 7.13 and 7.15, and
(D) states that such Financial Officer has reviewed this Agreement and the other Loan Documents and has no knowledge of any Default or Event of Default during such Fiscal Year, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the nature thereof;
(b) as soon as practicable, but in any event not no later than 45 forty-five (45) days after the end of each fiscal quarter of the Borrowers, copies first three Fiscal Quarters of each Fiscal Year
i. the consolidated and consolidating balance sheets and statement of operations sheet of the Parent Parent, the Borrowers and their Restricted Subsidiaries, as at the end of such quarterFiscal Quarter, subject to year end adjustments, and the related statement consolidated and consolidating statements of income or operations, cash flowsflows and shareholders’ equity for such Fiscal Quarter and the portion of the Fiscal Year through the end of such Fiscal Quarter, each setting forth in comparative form the figures for the previous Fiscal Quarter of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year and all such consolidated and consolidating financial statements to be in reasonable detail and prepared in accordance with GAAPdetail, with a certification by the principal financial or accounting officer of each Borrower (the "CFO") that the consolidated financial statements are prepared in accordance with GAAP consistently applied and
ii. a Compliance Certificate duly executed by a Financial Officer of the Borrower Representative, which, among other things,
(A) attaches and certifies to the foregoing consolidated and consolidating financial statements and a management discussion and analysis prepared in connection with such financial statements (subject to year-end adjustments and the absence of footnotes),
(B) certifies that the information contained in such consolidated and consolidating financial statements fairly present presents in all material respects the consolidated financial condition of Parent, the Borrowers and their Restricted Subsidiaries on the dates indicated therein,
(C) appends computations evidencing the Fixed Charge Coverage Ratio and the First Lien Net Leverage Ratio for the Reference Period ended as of the last day of such Fiscal Quarter and specifying whether the Credit Parties have complied with Sections 7.13 and 7.15, and 104
(D) states that such Financial Officer has reviewed this Agreement and the other Loan Documents and has no knowledge of any Default or Event of Default during such Fiscal Quarter, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the nature thereof;
(c) as soon as practicable, but in any event no later than forty five (45) days after the end of each Fiscal Month
i. the unaudited monthly consolidated and consolidating financial statements of Parent, the Borrowers and their Restricted Subsidiaries for such Fiscal Month, including the consolidating balance sheet of Parent, the Borrowers and their Restricted Subsidiaries, as at the close end of business such Fiscal Month, the related consolidating statements of income or operations and cash flows for such Fiscal Month and for the portion of the Fiscal Year then ended, each setting forth in comparative form the figures for the corresponding Fiscal Month of the previous Fiscal Year and the corresponding portion of the previous Fiscal Year, each, prepared in accordance with GAAP consistently applied and
ii. a Compliance Certificate duly executed by a Financial Officer of the Borrower Representative, which, among other things,
(A) attaches and certifies to the foregoing consolidated financial statements and a management discussion and analysis prepared in connection with such financial statements (subject to year-end adjustments and the absence of footnotes),
(B) certifies that the information contained in such financial statements fairly presents in all material respects the financial condition of Parent, the Borrowers and their Restricted Subsidiaries on the date thereof (subject to year-end adjustments) adjustments and the results absence of operations footnotes),
(C) appends computations evidencing the Fixed Charge Coverage Ratio for the period then ended;
(c) simultaneously with the delivery of the financial statements referred to in (a) and (b) above, a statement in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, Reference Period ended as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance last day of such certificate Fiscal Month and specifying whether the Credit Parties have complied with Section 7.13, and
(D) states that such Financial Officer has reviewed this Agreement and the other Loan Documents and has no knowledge of any Default or Event of DefaultDefault during such Fiscal Month, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the Borrowers shall include in such certificate or otherwise deliver forthwith nature thereof to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoAdministrative Agent’s reasonable satisfaction;
(d) annually or as soon as available and in any event within twenty (20) days after the end of each calendar month (or, during a Weekly Collateral Reporting Trigger Period, within two Business Days after the end of each calendar week), and at such other time times as the Administrative Agent may reasonably require, (i) a Borrowing Base Certificate with 105 respect to the Collateral of the Borrowers as of the close of business of such month (or if weekly reporting applies, as of the close of business of such week on the immediately preceding Business Day (provided that if such week is the last week of a month, then the Borrowing Base Certificate for such week shall be delivered as of the last day of the month)), accompanied by accounts receivable and accounts payable agings and copies of the Borrowers’ sales journal, cash receipts journal and credit memo for the relevant period, and such other supporting detail, documentation and information related thereto as the Administrative Agent shall reasonably request (including copies of all invoices prepared in connection with the Accounts) and (ii) a perpetual inventory and the Administrative Agent’s standard form of Inventory report then in effect (or the form most recently requested by the Administrative Agent), by each category of Inventory, together with a description of the monthly (or, if applicable, weekly) change in each category of Inventory, in each case, as of the close of business on the last day of such month or week, as applicable, in each case, accompanied by such supporting detail, documentation and information as the Administrative Agent shall reasonably request;
(e) As soon as practicable and in any event within twenty (20) days after the end of each Fiscal Month, (i) a summary and detailed aging of the Borrowers’ Accounts in form and substance satisfactory to the Administrative Agent in its Permitted Discretion, (ii) a summary and detailed aging of the Borrowers’ accounts payable in form and substance satisfactory to the Administrative Agent in its Permitted Discretion, (iii) a listing of any held checks, (iv) a perpetual inventory report for the Borrowers by each category of Inventory and otherwise in form and substance satisfactory to the Administrative Agent in its Permitted Discretion, and (v) reconciliations of Accounts, accounts payable, Inventory and loan balances to the general ledger;
(f) within 30 days after each June 30 and December 31, a list of the names and addresses of all Account Debtors of the Borrowers;
(g) not later than January 31 of each Fiscal Year, an annual business plan and projections for Parent, the Borrowers and their Restricted Subsidiaries for the following Fiscal Year on a monthly basis (such projections to include consolidated balance sheets, statements of cash flows, statements of income or operations of Parent, the Borrowers and their Restricted Subsidiaries and Overall Excess Availability, in each case prepared on a month-by-month basis and such other matters reasonably requested by the Administrative Agent);
(h) promptly upon receipt thereof, copies of the financial statementsany detailed audit reports, financial projectionscontrol reports, annual budgetmanagement letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Credit Parties by independent accountants other consultants or advisors in connection with the accounts or books of ay Credit Party or any Subsidiary or any audit of any of them;
(i) immediately, variance reports and business plan in any event within two (2) Business Days after receipt by a member of Senior Management thereof by any Credit Party or any Restricted Subsidiary thereof, copies of each notice or other correspondence received from any 106 Governmental Authority concerning any material investigation by such agency regarding financial or other operational results of any Credit Party or any Subsidiary;
(j) promptly following the Borrowers request of the Administrative Agent, a report summarizing the insurance coverage in effect for each Credit Party and its Restricted Subsidiaries and promptly following the modification, renewal, replacement of any insurance policy of any Credit Party or its Restricted Subsidiaries, updated insurance certificates and endorsements evidencing such coverage;
(k) as soon as practicable, but in any event no later than ten (10) days following the end of any Fiscal Quarter in which there has been a change since the last Fiscal Quarter in the Intellectual Property or bank accounts of the Credit Parties, as applicable, updated Schedules 5.07, 5.17, and 7.08, an updated Exhibit A to the IP Security Agreement, or an updated list of bank accounts in the Perfection Certificate identified in Section 5.19, in each case in substantially the same form in which such information is supplied as the most recent schedule of the same delivered to the boards of directors Administrative Agent; and
(l) promptly following a request therefor, from time to time such sales projections, budgets, operating plans or other financial data or information as the Administrative Agent or any Lender may reasonably request.
(m) Notwithstanding the foregoing, the obligations to provide certain financial statements in Section 6.04(a)(i) and (b)(i) may also be satisfied by the furnishing of the Borrowers;
Form 10-K or 10-Q, as applicable, of Parent (eor Parent’s direct or indirect parent company) contemporaneously with, or promptly following, the filing or mailing thereof, copies of all material of a financial nature filed with the SEC or sent otherwise made available to the stockholders Administrative Agent for delivery to each Lender, in each case, within the time periods specified in Section 6.04(a) and (b); provided, that to the extent such financial statements relate to any Person or Persons other than Parent, the Borrowers and their Restricted Subsidiaries, on a standalone basis, (including, without limitation, any Unrestricted Subsidiaries or any direct or indirect parent of Parent), such financial statements shall be accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such Person or Persons, on the one hand, and Parent, the Borrowers and their Restricted Subsidiaries, on a standalone basis, on the other hand, which consolidating information shall be certified by a Financial Officer of the Borrowers; andBorrower Representative as having been fairly presented in all material respects.
Appears in 1 contract
Samples: Credit Agreement
Financial Statements, Certificates and Information. The Borrowers -------------------------------------------------- Borrower will deliver to each of the LendersBanks:
(a) as soon as practicable, but, but in any event not later than 90 one hundred (100) days after the end of each fiscal year of the ParentBorrower, the consolidated balance sheet of the Borrower and its Subsidiaries, the consolidating balance sheets sheet of each of Holdings and its Subsidiaries and the Parent Borrower and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated statements of income, and consolidated statements of cash flow and consolidating statements of operationsincome and consolidating statements of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andgenerally accepted accounting principles, and such consolidated statements are reported upon without qualification by a nationally recognized independent certified public accounting firm or by other independent certified public accountants of nationally recognized standing, together with respect a written statement from such accountants to the consolidated financial statementseffect that they have read a copy of (S)11 of this Credit Agreement in connection with their audit of the Borrower and its Subsidiaries, Certified by and that, in making the Accountantsexamination necessary to said certification, they have obtained no knowledge of any Default or Event of Default under (S)11 of the Credit Agreement, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default under (S)11 of the Credit Agreement they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable -------- to the Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 fifty-five (55) days after the end of each fiscal quarter of the Borrowersfiscal quarters of the Borrower, copies of the unaudited consolidated balance sheet of each of Holdings and its Subsidiaries and the Borrower and its Subsidiaries and the unaudited consolidating balance sheets sheet of each of Holdings and statement of operations of its Subsidiaries and the Parent Borrower and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related statement consolidated statements of income, consolidated statements of cash flowsflow for the portion of such Person's fiscal year then elapsed, all in reasonable detail detail, showing operating contribution on a Stopping Center by Stopping Center basis and with respect to the Borrower the comparison of the Borrower's performance for such period to the Borrower's projected budget for such period, and prepared in accordance with GAAPgenerally accepted accounting principles, together with a certification by the principal financial or accounting officer of each the Borrower (the "CFO") that the consolidated information contained in such financial statements are prepared in accordance with GAAP and fairly present presents the consolidated financial condition position of the Borrowers as at the close of business Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit C hereto (the "Compliance --------- Certificate") certified by the CFO that the Borrowers are and setting forth in reasonable detail (i) computations evidencing compliance with the covenants contained in ss.ss.7(S)11 and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date, 8 (ii) an updated Schedule 8.26 identifying any bank account opened or closed during the ------------- fiscal quarter then ended (iii) an updated Schedule 8.18 identifying ------------- any new underground storage tanks located on the Mortgaged Properties, and 9 hereof, as (iv) a schedule identifying the actual operating expenses of Holdings for the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith fiscal quarter then ended compared to the Lenders a certificate specifying amounts previously provided in the nature and period of existence thereof and what action budget delivered to the Borrowers propose Agent pursuant to take with respect thereto;(S)9.4(e)(ii).
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission;
(e) not later than January 31 of each year, or sent such later time as agreed to by the stockholders Agent, (i) the budgets of the BorrowersBorrower and its Subsidiaries for such year and (ii) the budget of the operating expenses for such year intended to be distributed to Holdings pursuant to (S)10.4(c); and
(f) from time to time such other financial data and information as the Agent or any Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Petro Stopping Centers L P)
Financial Statements, Certificates and Information. The Borrowers will deliver to each of the Lenders:
(a) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentBorrowers, the consolidated balance sheet of BGI and consolidating balance sheets of the Parent its Subsidiaries as at the end of such year, statements of cash flows, and the related consolidated statement of income and consolidating statements consolidated statement of operationscash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, with respect and certified, without qualification and without an expression of uncertainty as to the consolidated financial statementsability of BGI or any of its Subsidiaries to continue as going concerns, Certified by Ernst & Young LLP or by other independent certified public accountants satisfactory to the AccountantsAdministrative Agent, which shall include a written statement from such accountants to the effect that they have read a copy of this Credit Agreement, and that, in making the examination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default, they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Lenders for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than 45 forty-five (45) days after the end of each of the first three fiscal quarter quarters of the Borrowers, copies of the unaudited consolidated balance sheet of BGI and consolidating balance sheets and statement of operations of the Parent its Subsidiaries as at the end of such quarter, subject to year end adjustments, and the related consolidated statement of income and consolidated statement of cash flowsflow for the portion of the Borrowers' fiscal year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of each Borrower (the "CFO") BGI that the consolidated information contained in such financial statements are prepared in accordance with GAAP fairly presents the financial position of BGI and fairly present the consolidated financial condition of the Borrowers as at the close of business its Subsidiaries on the date thereof (subject to year-end adjustments) and the results of operations for the period then ended);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, at the times required by Section 12.8 and promptly on or before the occurrence of a Cash Dominion Event, a statement certified by the principal financial or accounting officer of the Borrowers in substantially the form of EXHIBIT Exhibit D hereto (the a "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the end of the applicable period and setting forth in reasonable detail computations evidencing such compliance, PROVIDED THAT compliance with the covenant contained in Section 10 (if the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Defaultapplicable), the Borrowers shall include in such certificate or otherwise deliver forthwith to calculation of Excess Availability, the Lenders a certificate specifying calculation of Consolidated EBITDA for the nature and most recently ended period of existence thereof four (4) consecutive Fiscal Quarters of BGI and what action its Subsidiaries, (if applicable) reconciliations to reflect changes in GAAP since the Borrowers propose Balance Sheet Date and setting forth the projections and other information required pursuant to take with respect theretoSection 9.4(c);
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(e) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Securities and Exchange Commission or sent to the stockholders of any of the Borrowers;
(e) within twenty (20) days after the end of each fiscal month or at such earlier time as the Administrative Agent may reasonably request, a Borrowing Base Report setting forth the Domestic Borrowing Base, the Aggregate Borrowing Base, the Last Out Borrowing Base, the Excess Availability, the Last Out Excess Availability, the Incremental Availability and, to the extent applicable, an updated Schedule 7.24 and/or the Fixed Charge Coverage Ratio as at the end of such fiscal month or other date so requested by the Administrative Agent; provided that if at any time a Cash Dominion Event has occurred and is continuing (unless and until a Cash Dominion Cure Event shall have occurred), if requested by the Administrative Agent, then within five (5) days after the end of each calendar week, a Borrowing Base Report setting forth the Domestic Borrowing Base, the Aggregate Borrowing Base, the Last Out Borrowing Base, the Excess Availability, the Last Out Excess Availability and the Incremental Availability as at the end of such calendar week and, with respect to such Borrowing Base Report delivered at the end of each fiscal month, an updated Schedule 7.24 (if applicable) and the Fixed Charge Coverage Ratio as at the end of such fiscal month, together with such other information relating to the Collateral as the Administrative Agent shall reasonably request, and accompanied by such supporting detail and documentation as the Administrative Agent shall reasonably request;
(f) contemporaneously with any delivery made in connection with clause (e) of this Section 8.4, an Accounts Receivable aging report and an inventory summary with respect to any Accounts Receivable and inventory included in the Aggregate Borrowing Base, the Domestic Borrowing Base or the Last Out Borrowing Base;
(g) within thirty (30) days after the end of each Fiscal Year, and from time to time upon request of the Administrative Agent, monthly projections for the upcoming Fiscal Year of BGI and its Subsidiaries updating those projections delivered to the Lenders and referred to in Section 7.4.3 or, if applicable, updating any later such projections delivered in response to a request pursuant to this Section 8.4(g);
(i) on or before each anniversary of the Closing Date, each Borrower or Guarantor which is a party to the Security Agreement shall deliver to the Collateral Agent a certificate, in substantially the form attached to the Security Agreement as Exhibit A, executed by an Authorized Officer of such Person (A) certifying that there has been no change in any information provided in the perfection certificate delivered in connection with the Security Agreement since the date on which such perfection certificate was signed by such Person (or most recent updated pursuant to this Section 8.4(h)) or (B) attaching an updated perfection certificate for such Person certified to be true and correct as of the date thereof, (ii) on or before each anniversary of the Closing Date, each Borrower or Guarantor which is a party to the UK Security Documents shall deliver to the Administrative Agent a certificate, in substantially the form attached to the Security Agreement as Exhibit A (together with the necessary changes to reflect the nature of the UK Security Documents), executed by an Authorized Officer of such Person (A) certifying that there has been no change in any information provided in the perfection or collateral certificate delivered in connection with the UK Security Documents since the date on which such perfection or collateral certificate was signed by such Person (or most recent updated pursuant to this Section 8.4(h)) or (B) attaching an updated perfection or collateral certificate for such Person certified to be true and correct as of the date thereof and (iii) on or before each anniversary of the Closing Date, each Borrower or Guarantor which is a party to the Irish Security Documents shall deliver to the Administrative Agent a certificate, in substantially the form attached to the Security Agreement as Exhibit A (together with the necessary changes to reflect the nature of the Irish Security Documents), executed by an Authorized Officer of such Person (A) certifying that there has been no change in any information provided in the perfection or collateral certificate delivered in connection with the Irish Security Documents since the date on which such perfection or collateral certificate was signed by such Person (or most recent updated pursuant to this Section 8.4(h)) or (B) attaching an updated perfection or collateral certificate for such Person certified to be true and correct as of the date thereof; and
(i) from time to time such other financial data and information (including accountants, management letters) as the Administrative Agent or any Lender may reasonably request. Documents required to be delivered pursuant to this Section 8.4 (to the extent any such documents are included in materials otherwise filed with the United States 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 Borrowers post such documents, or provides a link thereto on the Borrowers' website on the Internet at the website address listed in Section 16.6; or (ii) on which such documents are posted on the Borrowers' behalf on an Internet or intranet website, if any, to which each Lender, each Issuing Bank and each Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrowers shall deliver paper copies of such documents to the Administrative Agent, any Issuing Bank or any Lender that requests the Borrowers to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent, such Issuing Bank or such Lender and (ii) the Borrowers shall notify the Administrative Agent, the Issuing Banks 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 Borrowers shall be required to provide paper copies of the Compliance Certificates required by Section 8.4(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 and Issuing Bank shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
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Samples: Multicurrency Revolving Credit Agreement (Borders Group Inc)
Financial Statements, Certificates and Information. The Borrowers Company will deliver to each of the LendersHolders:
(ai) as soon as practicable, but, but in any event not later than 90 ninety (90) days after the end of each fiscal year of the ParentFiscal Year, the consolidated and consolidating balance sheets of the Parent and its Subsidiaries, each as at the end of such year, statements of cash flows, and the related consolidated and consolidating statements of operationsincome and consolidated and consolidating statements of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year, Fiscal Year and all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP andGAAP, and certified as to consolidated statements by PricewaterhouseCoopers LLP or other Big Five Accounting Firm, together with respect a written statement from such accountants to the consolidated financial statementseffect that they have read a copy of this Agreement, Certified by and that, in making the Accountantsexamination necessary to said certification, they have obtained no knowledge of any Default or Event of Default, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the Holders for failure to obtain knowledge of any Default or Event of Default;
(bii) as soon as practicable, but in any event not later than 45 days after the end of each fiscal quarter of the Borrowersfirst three fiscal quarters of the Company, copies of the unaudited consolidated and consolidating balance sheets and statement of operations of the Parent and its Subsidiaries, each as at the end of such quarter, subject to year end adjustments, and the related statement consolidated and consolidating statements of income and consolidated statements of cash flowsflow for the portion of the Fiscal Year then elapsed, all in reasonable detail and prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of each Borrower (the "CFO") Company that the information contained in such financial statements fairly presents the consolidated financial statements are prepared in accordance with GAAP and fairly present the consolidated financial condition position of the Borrowers as at Parent and its Subsidiaries and the close consolidating financial position of business the Parent and each of the Significant Subsidiaries on the date thereof (subject to year-end adjustmentsadjustments in conformity with rules for interim financial reporting and lack of footnotes) and the results of operations (solely for the period then endedpurposes of this clause (ii) consolidating reporting shall be limited to the Parent, the Company and Significant Subsidiaries);
(ciii) as soon as practicable, but in any event within 30 days after the end of each month in each Fiscal Year, unaudited monthly consolidated financial statements of the Parent and its Subsidiaries for such month, each prepared in accordance with GAAP, together with a certification by the principal financial or accounting officer of the Company that the information contained in such financial statements fairly presents the financial condition of the Parent, the Company and each of their Subsidiaries on the date thereof (subject to year-end adjustments in conformity with rules for interim financial reporting and lack of footnotes);
(iv) simultaneously with the delivery of the financial statements referred to in subsections (ai) and (bii) above, a statement Compliance Certificate with respect to the period covered by such financial statements together with a Covenant Compliance Worksheet reflecting the computation of the financial covenants set forth in the form of EXHIBIT D hereto (the "Compliance Certificate") certified by the CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and Section 9 hereof, as of the end last day of the applicable period covered by such financial statements and setting forth (if applicable) reconciliations to reflect changes in reasonable detail computations evidencing such compliance, PROVIDED THAT if GAAP since the Borrowers shall at the time of issuance of such certificate have knowledge of any Default or Event of Default, the Borrowers shall include in such certificate or otherwise deliver forthwith to the Lenders a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect theretoBalance Sheet Date;
(d) annually or at such other time as may be reasonably requested by the Administrative Agent, copies of the financial statements, financial projections, annual budget, variance reports and business plan concerning the Borrowers in substantially the same form in which such information is supplied to the boards of directors of the Borrowers;
(ev) contemporaneously with, or promptly following, with the filing or mailing thereof, copies of all material of a financial nature filed with the SEC Commission or sent to the stockholders of the BorrowersCompany;
(vi) not later than 90 days after the commencement of each Fiscal Year, the budget of the Parent, the Company and each of their Subsidiaries for such Fiscal Year; andand 45
(vii) from time to time such other financial data and information (including accountants, management letters) as the Holders may reasonably request so long as such requests do not cause an undue burden on the Company or its management.
Appears in 1 contract
