Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to the Administrative Agent: (a) as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g): (i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP and its subsidiaries at the end of such year, the related audited consolidated statements of operations, owner's equity (deficit) and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and (ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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, and, in each case, accompanied by an auditor's report prepared without qualification by the Accountants; (b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) fiscal quarters: (i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP and its subsidiaries as at the end of such quarter, the related unaudited consolidated statements of operations, owner's equity (deficit) and cash flows for the portion of MCRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and (ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SEC, together with a certification by the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) and its subsidiaries on the date thereof (subject to year-end adjustments); (c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year), a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof; (d) promptly if requested by the Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower Borrowers will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrowers and their Subsidiaries, the audited consolidated balance sheet of MCRLP the Borrowers and its subsidiaries their Subsidiaries, as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared and certified without qualification and without an expression of uncertainty as to the ability of any Borrower or any of their Subsidiaries to continue as a going concern, by Ernst & Young LLP or by other "Big Five" independent certified public accountants or other independent certified public accounts satisfactory to the AccountantsAgent;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrowers and their Subsidiaries, copies of the unaudited consolidated balance sheet of MCRLP the Borrowers and its subsidiaries their Subsidiaries as at the end of such quarter, the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLP's the such Persons' fiscal year then elapsedelapsed and detailed income statements on an individual Unit-by-Unit basis for each Unit operated by a Borrower or a Borrower's Subsidiary, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrowers that the information contained in such consolidated financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrowers and its subsidiaries their Subsidiaries on the date thereof (subject to year-end adjustments);
(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 Borrowers and their Subsidiaries, financial statements in the form attached hereto as Exhibit G, prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Borrowers that the information contained in such financial statements fairly presents the financial condition of the Borrowers and their Subsidiaries on the date thereof (subject to year-end adjustments);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year), a statement certified by the principal financial or accounting officer of the Borrowers in substantially the form of EXHIBIT D Exhibit E hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, (a "Compliance Certificate") and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 11 and Section 9 hereof(if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(de) promptly if requested by contemporaneously with the Administrative filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Borrowers;
(f) from time to time upon request of the Agent, but no more frequently than once per year, projections of the Borrowers and their Subsidiaries updating those projections delivered to the Banks and referred to in Section 8.4.3 or, if applicable, updating any later such projections delivered in response to a copy of each report request pursuant to this Section 9.4(f); and
(g) from time to time such other financial data and information (including accountants' management letters) as the Agent may reasonably request, including, without limitation, a written statement from the accountants described in Section 9.4(a) as 62 -54- to whether they have obtained any so-called letters knowledge of reportable conditions a Default or letters Event of no material weakness) submitted to Default in making the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;examination described herein.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Dave & Busters Inc)
Financial Statements, Certificates and Information. The Such Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentLenders:
(a) as soon as practicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedCAI, the audited consolidated balance sheet of MCRLP CAI and its subsidiaries Subsidiaries, as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, andand certified, in each case, accompanied by an auditor's report prepared without qualification and without an expression of uncertainty as to the ability of CAI or any of its Subsidiaries to continue as going concerns, by KPMG LLP or by other independent certified public accountants satisfactory to the AccountantsAdministrative Agent;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its the first three (3) fiscal quarters:
(i) in the case quarters of MCRLP, if preparedeach fiscal year of CAI and its Subsidiaries, copies of the unaudited consolidated balance sheet of MCRLP CAI and its subsidiaries Subsidiaries, as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and statement of cash flows flow for the portion of MCRLP's the fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, CAI that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) CAI and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of CAI in substantially the form of EXHIBIT Exhibit D hereto signed by (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, covenants contained in §10 and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Balance Sheet Date;
(i) contemporaneously with the filing or mailing thereof, but only copies of all material of a financial nature filed with the Securities and Exchange Commission or with any national securities exchange or sent to the extent that stockholders of CAI or its 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 notice or other correspondence received from the Securities and Exchange Commission or any national securities exchange concerning any investigation or possible investigation or other inquiry by such changes in GAAP affect agency regarding any financial or other operational results of CAI or any of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect;
(e) within forty-five days (45) days of the financial covenants set forth in Section 9 hereof; end of each calendar month and, in any case, simultaneously with the case delivery of MCRLPa 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 in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 Borrowing Base and Section 9 hereof;
(d) promptly if the Domestic 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;
(f) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a copy report listing the aggregate number of each report (including any so-called letters of reportable conditions Containers owned, rented, leased or letters of no material weakness) submitted managed by the such Borrower and its Subsidiaries, together with monthly utilization rate and per diem rental rate information with respect to the BorrowerContainers in form and detail satisfactory to the Administrative Agent; and
(g) from time to time such other financial data and information (including, MCRCwithout limitation, accountants’ management letters and consolidating financial statements of CAI and its Subsidiaries) as the Administrative Agent or any other Guarantor Lender may reasonably request. Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders materials and/or information provided by or on behalf of any Borrower or any of their respective subsidiaries its Subsidiaries hereunder (collectively, “Borrower Materials”) by posting the Accountants in connection with each annual audit Borrower Materials on SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the books Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that so long as the Borrowers are 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,” each Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuer, the Swing Line Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §16.4); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Borrower, MCRC, or Platform designated “Public Investor;” and (z) the Administrative Agent and the Arrangers shall be entitled to treat any other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the business of Platform not designated “Public Investor.” Notwithstanding the Borrowerforegoing or anything to the contrary contained herein, MCRC or no Borrower shall be under any other Guarantor or obligation to xxxx any such subsidiary;Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Revolving Credit Agreement (CAI International, Inc.)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative Agent:
Banks: (a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP and its subsidiaries the Company at the end of such year, and the related audited consolidated statements statement of operationsincome, owner's statement of changes in shareholders, equity (deficit) and cash flows statement of Funds From Operations and taxable income for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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 GAAPgenerally accepted accounting principles on a consolidated basis including the Borrower and the Related Companies, and, in each case, and accompanied by an auditor's report prepared without qualification by Ernst & Young or by another independent certified public accountant reasonably acceptable to the Accountants;
Agent; (b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its the first three (3) fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet sheets of MCRLP the Borrower and its subsidiaries of the Company as at the end of such quarter, and the related unaudited consolidated statements statement of operationsincome, owner's statement of changes in shareholders' equity (deficit) and cash flows statement of Funds From Operations and estimated taxable income for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Company that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries of the Company on the date thereof (subject to year-end adjustments);
; provided, however, that for so long as the Borrower and the Company are filing form 10-Q with the SEC, the delivery of a copy thereof pursuant to paragraph (f) of this 7.4 shall be deemed to satisfy this paragraph (b); (c) simultaneously with as soon as practicable, but in any event not later than forty-five (45) days after the delivery end of each of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year), a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by the Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, or any other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase copies of a statement of the business Net Operating Income for such fiscal quarter for each Mortgaged Property, prepared on a basis consistent with the statements furnished pursuant to 6.4 (c) , 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, MCRC or any other Guarantor or any the Borrower will provide the Agent with , for each of the Mortgaged Properties a rent roll dated as of the end of such subsidiary;fiscal quarter in form reasonably satisfactory to the Agent; (
Appears in 1 contract
Samples: Loan Agreement (Liberty Property Limited Partnership)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to the Administrative AgentLender:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, andand certified, in each casewithout qualification, accompanied by an auditor's report prepared without qualification PricewaterhouseCoopers LLP or by other independent certified public accountants satisfactory to the AccountantsLender;
(b) as soon as practicable, but in any event not later than forty-five fifty (4550) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously contemporaneously with the delivery filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent generally to the stockholders of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year), a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereofBorrower; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by from time to time such other financial data and information as the Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (DSL Net Inc)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared and certified without qualification by Price Waterhouse LLP or by other independent certified public accountants reasonably satisfactory to the Accountants;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
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement compliance certificate certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereofExhibit C hereto;
(d) promptly if contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Borrower;
(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 (in the form attached hereto as Exhibit D) setting forth the Borrowing Base as at the end of such calendar month or other date so requested by the Administrative Agent; provided, that at any time while the difference between (i) the Borrowing Base and (ii) the sum of (A) the aggregate principal amount of all Revolving Credit Loans plus (B) the Maximum Drawing Amount plus (C) all Unpaid Reimbursement Obligations is less than $5,000,000, the Borrower will deliver to the Bank a copy Borrowing Base Report at the end of each report calendar week;
(including any so-called letters f) within fifteen (15) days after the end of reportable conditions or letters of no material weakness) submitted to the Borrowereach calendar month, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;an Accounts Receivable aging report; and
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower Parent and the Borrowers will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedParent, the audited consolidated balance sheet of MCRLP the Parent and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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 GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared and certified without qualification by the AccountantsCoopers & Xxxxxxx LLP or by other independent certified public accountants of recognized national standing, which statements shall include a footnote which identifies any Default or Event of Default;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its the first three (3) fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedParent, copies of the unaudited consolidated balance sheet of MCRLP the Parent and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Parent's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial officer or vice president accounting officers of finance each of MCRLP or MCRC, as applicable, the Borrowers and the Parent that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Parent and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with promptly upon the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officers of the Borrowers and the Parent in substantially the form of EXHIBIT D Exhibit C attached hereto signed by and setting forth in reasonable detail computations (i) calculating the chief financial officer or vice president Leverage Ratio for purposes of finance of determining the MCRLP or MCRC, as applicable, Applicable Margin and (ii) evidencing compliance with the covenants contained in Section 10 hereof and (if applicable) reconciliations to reflect changes in GAAP generally accepted accounting principles since the applicable Financial Statement Balance Sheet Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested upon the filing or mailing thereof, copies of all material information of a financial nature (i) filed with the Securities and Exchange Commission, (ii) sent to the stockholders of the Parent or (iii) received by the Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor Parent or any of their respective subsidiaries its Subsidiaries from the Target or any of its Subsidiaries;
(e) from time to time such other financial data and information (including accountants' management letters) as the Agent or any Bank may reasonably request; and
(f) once each calendar year, or more frequently as determined by the Accountants in connection with each annual audit Agent if an Event of Default shall have occurred and be continuing, upon the request of the books Agent, the Borrowers will, at their own expense, obtain and deliver to the Agent appraisal reports in form and substance and from appraisers satisfactory to the Agent, stating the then current fair market values of all or any portion of the BorrowerVessels, MCRCprovided, or any other Guarantor or that no more than one such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase appraisal per calendar year shall be conducted and made at the expense of the business Borrowers. The first such appraisal following the Closing Date shall be completed by February 28, 1998. Such appraisal may include an inspection of each such Vessel by marine engineers or other surveyors selected by the Borrower, MCRC or any other Guarantor or any such subsidiary;Agent in its sole discretion.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Trico Marine Services Inc)
Financial Statements, Certificates and Information. The Borrower will shall, and (if applicable) shall cause each other Loan Party to, deliver and will or cause MCRC to deliver be delivered to the Administrative AgentAgent 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, if applicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedcalendar year, the audited consolidated Consolidated balance sheet of MCRLP REIT and its subsidiaries Subsidiaries at the end of such year, and the related audited consolidated statements of operationsincome, owner's equity (deficit) changes in capital and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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, and, in each case, accompanied by an auditor's report prepared without qualification by the Accountants;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) fiscal quarters:
(i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP and its subsidiaries as at the end of such quarter, the related unaudited consolidated statements of operations, owner's equity (deficit) and cash flows for the portion of MCRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SEC, together with a certification by an Authorized Officer or the chief financial officer or vice president accounting officer of finance of MCRLP or MCRC, as applicable, REIT that the information contained in such financial statements fairly presents in all material respects the financial position of MCRLP or MCRC (as the case may be) REIT and its subsidiaries Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a member firm of KPMG International Cooperative or another nationally recognized accounting firm reasonably approved by the Agent;
(b) within five (5) days of the filing of REIT’s Form 10-Q with the SEC, if applicable, but in any event not later than sixty (60) days after the end of each calendar quarter of each year, copies of the unaudited consolidated balance sheet of REIT and its Subsidiaries, as at the end of such quarter, and the related unaudited consolidated statements of income and cash flows for the portion of 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 chief financial officer or accounting officer of REIT that the information contained in such financial statements fairly presents in all material respects the financial position of REIT and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT D hereto signed (a “Compliance Certificate”) certified by an Authorized Officer or the chief financial officer or vice president chief accounting officer of finance REIT in the form of Exhibit E hereto (or in such other form as the MCRLP Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or MCRC, non-compliance (as applicable, and (if applicablethe case may be) with the covenants contained in § 9 setting forth reconciliations to reflect changes in GAAP since the applicable Financial Statement Balance Sheet Date, but only with the Compliance Certificate for the quarter ending September 30, 2019 being prepared by 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 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 calendar quarter for each of the Eligible Real Estate Assets, prepared on a basis consistent with the statements furnished to the extent 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 REIT that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants information contained in Section 8.7 and Section 9 hereofsuch statement fairly presents in all material respects Net Operating Income of the Eligible Real Estate Assets for such periods;
(d) promptly if requested by simultaneously with the Administrative Agentdelivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $10,000,000 or more of Loan Parties 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, 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 report material Lease or material amendment to any material Lease entered into with respect to an Eligible Real Estate Asset during such calendar quarter (including any so-called letters the fourth calendar quarter in each year);
(f) simultaneously with the delivery of reportable conditions or letters of no material weaknessthe financial statements referred to in subsections (a) submitted and (b) above, to the Borrowerextent not included in public filings by or on behalf of REIT, MCRCand upon request by the Agent, a statement (i) listing the material Real Estate owned by Loan Parties and their Subsidiaries (or in which Loan Parties or their Subsidiaries own an interest) and stating the location thereof, the date acquired and the acquisition cost, (ii) listing the Indebtedness of Loan Parties 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 Loan Parties and their Subsidiaries which are Development Properties and providing a brief summary of the status of such development;
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the owners of Borrower or REIT;
(h) to the extent requested by the Agent, copies of all annual federal income tax returns and amendments thereto of Loan Parties;
(i) promptly upon the filing hereof, copies of any registration statements (other Guarantor 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 Borrower or REIT shall file with the SEC;
(j) to the extent requested by the Agent, evidence reasonably satisfactory to the Agent of the timely 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 Loan Parties and their Subsidiaries for such calendar year; and
(l) from time to time such other financial data and information in the possession of Loan Parties or their respective subsidiaries by Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against Loan Parties and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting Loan Parties) as the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Agent may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower Company will deliver and will cause MCRC to deliver to each of the Administrative AgentInvestors:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedCompany, the audited consolidated balance sheet of MCRLP the Company and its subsidiaries Subsidiaries and the consolidating balance sheet of the Company and its Subsidiaries (with any reference to consolidating statements of Subsidiaries in this Section 7.2 to mean that term as applied to the accounts and financial statements, as applicable, of business lines), each as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case statement of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of income for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared and certified without qualification by PricewaterhouseCoopers LLP or by other independent certified public accountants of nationally recognized standing selected by the AccountantsCompany;
(b) as soon as practicable, but in any event not later than (i) forty-five (45) days after the end of each fiscal quarter of its first three the Company and (3ii) sixty (60) days after the end of the last fiscal quarters:
(i) in quarter of the case of MCRLP, if preparedCompany, copies of the unaudited consolidated balance sheet of MCRLP the Company and each of its subsidiaries Subsidiaries and the unaudited consolidating balance sheet of the Company and each of its Subsidiaries, each as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow and consolidating statement of income for the portion of MCRLPthe Company's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) each setting forth in comparative form the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows figures for the portion of MCRC's previous fiscal year then elapsedand a comparison setting forth the corresponding figures from the budgeted or projected figures for such period, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Company that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Company and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with as soon as practicable, but in any event within (i) thirty (30) days after the delivery end of each of the financial statements referred to first two (2) months in subsections (a) (for the fourth each fiscal quarter of the Company, (ii) forty-five (45) days after the end of the last month in each fiscal quarter, other than the last month of any year) above and (b) (for the first three fiscal quarters of each fiscal year), a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicableiii) reconciliations to reflect changes sixty (60) days after the end of the last month in GAAP since each fiscal year of the applicable Financial Statement DateCompany, but only to unaudited monthly consolidated financial statements of the extent that Company and its Subsidiaries for such changes in GAAP affect month and unaudited monthly consolidating financial statements of the financial covenants set forth in Section 9 hereof; andCompany and its Subsidiaries for such month, in the case of MCRLP, each setting forth in reasonable detail computations evidencing compliance comparative form the figures for the previous fiscal year and a comparison setting forth the corresponding figures from the budgeted 12 -12- or projected figures for such period and prepared in accordance with generally accepted accounting principles, together with a certification by the covenants principal financial or accounting officer of the Company that the information contained in Section 8.7 such financial statements fairly presents the financial condition of the Company and Section 9 hereofits Subsidiaries on the date thereof (subject to year-end adjustments);
(d) promptly if requested contemporaneously with the filing or mailing thereof, copies of all materials filed with the Commission or sent to the stockholders of the Company; and
(e) from time to time such other financial data and information (including accountants' management letters) as any Investor may reasonably request. So long as the Credit Agreement remains in effect, the Company may satisfy its obligations under this Section 7.2 by delivering to the Administrative AgentAgent (as defined in the Credit Agreement), a copy for the benefit of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted Investor, the information which it is required to deliver to the BorrowerBanks under the corresponding covenants contained in the Credit Agreement at the times required by such covenants. In the event the Credit Agreement is no longer in effect, MCRCthe Company may satisfy its obligations under this Section 7.2 by delivering to the Investors the information required under Section 7.2 (a) and (b) hereof or, or any other Guarantor or any of their respective subsidiaries by contemporaneously with the Accountants in connection with each annual audit filing thereof, copies of the books of Company 's Form 10-Q and Form 10-K filed with the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Commission.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Parent Companies, the Borrower and its subsidiaries their Subsidiaries and the consolidating balance sheet of the Parent Companies, the Borrower and their Subsidiaries, each as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case statement of MCRC, the audited consolidated balance sheet income and consolidating statement of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of cash flow for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, andand certified, in each case, accompanied by an auditor's report prepared without qualification and without an expression of uncertainty as to the ability of any of the Parent Companies, the Borrower or any of their Subsidiaries to continue as going concerns, by Xxxxxx Xxxxxxxx LLP or by other independent certified public accountants reasonably satisfactory to the AccountantsAgent;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its the first three (3) fiscal quarters:
(i) quarters of the Borrower in the case of MCRLP, if preparedeach fiscal year, copies of the unaudited consolidated balance sheet of MCRLP the Parent Companies, the Borrower and their Subsidiaries and the unaudited consolidating balance sheet of the Borrower and its subsidiaries Subsidiaries, each as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow and consolidating statement of income and consolidating statement of cash flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustmentsadjustments and the exclusion of footnotes);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT Exhibit D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 ss.11 and Section 9 hereof(if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(d) promptly if requested contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed by Digitas with the Administrative AgentSecurities and Exchange Commission or sent to the stockholders of the Borrower;
(e) as soon as practicable, a copy but in any event not later than forty-five (45) days after the end of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to fiscal year, the Borrower's annual budget for then current fiscal year;
(f) simultaneously with the receipt thereof, MCRCcopies of any accountants' management letters received by any of the Parent Companies, or any other Guarantor the Borrower or any of their respective subsidiaries by Subsidiaries; and
(g) from time to time such other financial data and information (including updated projections) as the Accountants in connection with each annual audit of Agent may reasonably request or as the books of Borrower may provide to the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Agent.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower Xxxxxxx-Xxxxxxx will deliver and will cause MCRC to deliver to each of the Administrative AgentLenders:
(a) as soon as practicable, but in any event not later than ninety one hundred five (90105) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedHoldings, the audited consolidated balance sheet of MCRLP Holdings and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPGenerally Accepted Accounting Principles, and, in each case, accompanied by an auditor's report prepared and as to the consolidated statements certified without qualification by Deloitte & Touche LLP or by other independent certified public accountants satisfactory to the AccountantsAgent;
(b) as soon as practicable, but in any event not later than forty-five within thirty (4530) days after the end of each month in each fiscal year of its first three (3) fiscal quarters:
(i) in the case Holdings, unaudited monthly consolidated financial statements of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP Holdings and its subsidiaries as at the end of Subsidiaries for such quartermonth, the related unaudited consolidated statements of operations, owner's equity (deficit) and cash flows for the portion of MCRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and each prepared in accordance with GAAP on Generally Accepted Accounting Principles, and each including a comparison of the same basis as used in preparation of MCRC's Form 10-Q statements filed current figures with the SECfigures contained in the Borrowers' business plan for such period, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, Holdings that the information contained in such financial statements fairly presents the financial position condition of MCRLP or MCRC (as the case may be) Holdings and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments), provided that for the months of March, June, September and December, the above described financial statements shall be delivered within 45 days of the end of such month;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for with respect to the first three fiscal quarters end of each fiscal year)calendar quarter) above, a statement certified by the principal financial or accounting officer of Holdings in substantially the form of EXHIBIT D Exhibit G hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 12 and Section 9 hereof(if applicable) reconciliations to reflect changes in Generally Accepted Accounting Principles since the Balance Sheet Date;
(d) promptly if requested by contemporaneously with the Administrative Agentfiling or mailing thereof, copies of all material of a copy financial nature filed with the Securities and Exchange Commission or sent to the stockholders of each report Holdings; and
(e) from time to time such other financial data and information (including any so-called accountants' management letters of reportable conditions or letters of no material weaknesssubstance) submitted to as the Borrower, MCRC, Agent or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Russell-Stanley Holdings Inc)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentLenders:
(a) as soon as practicable, but in any event not later than ninety within one hundred five (90105) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, andall certified and reported on by PricewaterhouseCoopers, LLP or other independent public accountants of recognized national standing, without a "going concern" or like qualification or exception as to the scope of such audit, to the effect that such consolidated financial statements present fairly in each case, accompanied by an auditor's report prepared without qualification by all material respects the Accountantsfinancial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) as soon as practicable, but in any event not later than forty-five within sixty (4560) days after the end of each of its the first three (3) fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT Exhibit D hereto signed by (a "Compliance Certificate") and setting forth in reasonable detail computations evidencing compliance with the chief financial officer or vice president of finance of the MCRLP or MCRCcovenants contained in Sections 9.1, as applicable9.5.2, and 10 and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Balance Sheet Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by after the Administrative Agentfiling or mailing thereof, a copy copies of each report all S-3 registration statements (including any soother than the exhibits thereto) and reports on Forms 10-called letters of reportable conditions or letters of no material weakness) submitted to K and 10-Q which the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by Borrower has filed with the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Securities and Exchange Commission; and
Appears in 1 contract
Samples: Revolving Credit Agreement (Lexmark International Inc /Ky/)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentLenders:
(a) as soon as practicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements and consolidating statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, andaudited and certified, in each case, accompanied by an auditor's report prepared 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 Ernst & Young, LLP or other independent certified public accountants reasonably satisfactory to the AccountantsAgent;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower and CLIF, copies of the unaudited consolidated balance sheet of MCRLP (i) the Borrower and its subsidiaries Subsidiaries and (ii) CLIF, in each case as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLP's the Borrower’s or CLIF’s, as the case may be, fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents in all material respects the financial position of MCRLP the Borrower and its Subsidiaries or MCRC (CLIF’s, as the case may be) and its subsidiaries , on the date thereof (subject to normal year-end adjustmentsadjustments made in accordance with GAAP and the absence of footnotes);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT Exhibit D hereto signed by (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, covenants contained in §10 and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Balance Sheet Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission;
(e) (i) within fifteen (15) Business Days after the end of each calendar month, (ii) within five (5) Business Days of the Drawdown Date of each Revolving Credit Loan or of the date of issuance, extension or renewal of each Letter of Credit, (iii) within five (5) Business Days prior to the date of any removal or sale of any assets from the Borrowing Base other than asset sales made in the ordinary course of business in an aggregate amount not to exceed $1,000,000, and (iv) at each other 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 Drawdown Date or other date so requested by the Administrative Agent;
(f) as soon as available (but in no event later than March 31st of each year), a copy of the annual consolidated budget for the Borrower and its Subsidiaries for each report fiscal year;
(g) together with the quarterly financials delivered pursuant to §8.3(b), a separate calculation of the utilization rate for the Eligible Containers as a group and the Eligible Chassis as a group and a separate weighted average calculation of the per diem rate for the preceding fiscal quarter for the Eligible Containers as a group and the Eligible Chassis as a group; and
(h) from time to time such other financial data and information (including any so-called letters of reportable conditions or letters of no material weaknessaccountants’ management letters) submitted to as the Borrower, MCRC, Agent or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Lender may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to the Administrative Agent:Agents and any Lender upon request of such Lender (made through the Agents):
(a) within five (5) days after the filing with the Securities and Exchange Commission of the Borrower’s Annual Report on Form 10-K (or such similar report to be filed for a “foreign private issuer” as soon as practicable, but defined by applicable Securities Laws) with respect to each fiscal year (and in any event not later than ninety within one hundred (90100) days after the end of each of its such fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedyear), the audited consolidated balance sheet sheets of MCRLP and its subsidiaries the Consolidated Group as at the end of such year, and the related audited consolidated statements of operations, owner's equity (deficit) income and cash flows for of the year then endedConsolidated Group, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year and year, all such financial statements to be in reasonable detail, prepared in accordance with GAAP, and, in each case, GAAP and audited and accompanied by an auditor's a report prepared without qualification by and opinion of the Accountants, which report and opinion shall state that such financial statements present fairly the financial position of the Consolidated Group and shall not be subject to any qualification as to going concern or the scope of the audit;
(b) within five (5) days after the filing with the Securities and Exchange Commission of the Borrower’s Quarterly Report on Form 10-Q (or such similar report to be filed for a “foreign private issuer” as soon as practicable, but defined by applicable Securities Laws) with respect to each of the first three (3) fiscal quarters of each fiscal year (and in any event not later than forty-five (45) within 55 days after the end of each of its first three (3) such fiscal quarters:
(i) in the case of MCRLP, if preparedquarter), copies of the unaudited consolidated balance sheet sheets of MCRLP the Consolidated Group as at the end of such fiscal quarter, and its subsidiaries the related consolidated statements of income and cash flows of the Consolidated Group as at the end of such quarter, subject to normal year-end adjustments and the related unaudited consolidated statements absence of operationsfootnotes, owner's equity (deficit) and cash flows for the portion of MCRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on subject to normal year-end adjustments and the same basis as used in preparation absence of MCRC's Form 10-Q statements filed with the SECfootnotes, together with a certification by the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, CFO that the information contained in such consolidated financial statements are prepared in accordance with GAAP and fairly presents present in all material respects the consolidated financial position condition of MCRLP or MCRC (the Consolidated Group as at the case may be) and its subsidiaries 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 subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for above, a Compliance Certificate certified by the first three fiscal quarters of each fiscal yearCFO that the Consolidated Group is in compliance with the covenants contained in Sections 7.01(b), a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance 7.02(j) and 7.14 as of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since end of the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLPperiod, setting forth in reasonable detail computations evidencing compliance such compliance; provided, that if the Borrower shall at the time of issuance of such certificate or at any other time obtain knowledge of any Default or Event of Default, the Borrower 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 Borrower propose to take with the covenants contained in Section 8.7 and Section 9 hereofrespect thereto;
(d) contemporaneously with, or promptly if requested by following, the Administrative Agentfiling or mailing thereof, copies of all material of a financial nature filed with the U.S. Securities and Exchange Commission (or the Canadian equivalent thereof) or sent to the stockholders of the Borrower; and
(e) from time to time, such other financial data and other information (including accountants’ management letters and a copy of each report the Borrower’s annual budget and projections for any fiscal year) as the Lenders may reasonably request. The Borrower shall be deemed to have delivered reports and other information referred to in clauses (including any so-called letters a), (b), and (d) of reportable conditions this Section 6.04 when (A) such reports or letters other information have been posted on the Internet website of no material weaknessthe Securities and Exchange Commission (hxxx://xxx.xxx.xxx) submitted (or, if applicable, the Canadian equivalent thereof) or on Borrower’s Internet website as previously identified to the BorrowerAgents and Lenders and (B) the Borrower has notified the Agents by electronic mail of such posting. The Borrower hereby acknowledges that (a) the Agents and/or the Arrangers may, MCRCbut shall not be obligated to, 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 any other Guarantor a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Subsidiaries, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Agents , the Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or their respective subsidiaries by securities for purposes of United States Federal, Canadian Federal, provincial, territorial and state securities laws (provided, however, that to the Accountants extent such Borrower Materials constitute Information, they shall be treated as set forth in connection with each annual audit Section 11.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the books Platform designated “Public Side Information;” and (z) the Agents and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the BorrowerPlatform not designated “Public Side Information.” Notwithstanding the foregoing, MCRC, or the Borrower shall be under no obligation to mxxx 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, MCRC or any other Guarantor or any such subsidiary;Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Waste Connections, Inc.)
Financial Statements, Certificates and Information. The Borrower Trans-Technology will deliver and will cause MCRC to deliver to the Administrative Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP and its subsidiaries at the end of such year, the related audited consolidated statements of operations, owner's equity (deficit) and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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, and, in each case, accompanied by an auditor's report prepared without qualification by the Accountants;Lenders:
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in the case quarters of MCRLP, if preparedTransTechnology, copies of the unaudited consolidated balance sheet of MCRLP TransTechnology and its subsidiaries Subsidiaries and the unaudited consolidating balance sheet of TransTechnology and its Subsidiaries, each as at the end of such quarter, and the related unaudited consolidated and consolidating statements of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPTransTechnology's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, TransTechnology that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) TransTechnology and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of TransTechnology in substantially the form of EXHIBIT D Exhibit C hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 11 and Section 9 hereof(if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(d) promptly if requested contemporaneously with the filing or mailing thereof, copies of all material filed with the Securities and Exchange Commission or sent to the stockholders of TransTechnology which is either of a financial nature or addresses the Year 2000 Problem;
(e) by the Administrative Agent, a copy April 30 of each report year, the annual budget of TransTechnology and its Subsidiaries for the next fiscal year; and
(f) from time to time such other financial data and information (including any so-called letters of reportable conditions or letters of no material weaknessaccountants' management letters) submitted to as the Borrower, MCRC, Agent or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Lender may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver and will or cause MCRC to deliver be delivered to each of the Administrative AgentLenders:
(a) as soon as practicable, but in any event not later than ninety (90) 90 days after the end of each fiscal year of its fiscal yearsthe Borrower, unless, in copies of the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries at the end of such year, and the related audited unaudited consolidated statements of operationsincome, owner's changes in shareholders equity (deficit) and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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, and, in each case, accompanied by an auditor's report prepared without qualification by the Accountants;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) fiscal quarters:
(i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP and its subsidiaries as at the end of such quarter, the related unaudited consolidated statements of operations, owner's equity (deficit) and cash flows for the portion of MCRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP the Borrower and its Subsidiaries on the date thereof (provided that the Agent may require that such balance sheet and statement be audited by an accounting firm approved by Agent (such approval not to be unreasonably withheld) at any time that Agent has reasonable grounds to request the same (including, without limitation, at any time that the Compliance Certificate indicates that the Borrower is at or MCRC (as near minimum compliance with the case may befinancial covenants in this Agreement) and any other information the Lenders may need to complete a financial analysis of the Borrower; or 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 quarter), copies of the unaudited consolidated balance sheet of the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements of income, changes in shareholders equity and cash flows for the portion of the Borrowers fiscal year then elapsed, all in reasonable detail and 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 position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year), a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by the Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;
Appears in 1 contract
Samples: Revolving Credit Agreement (Wellsford Real Properties Inc)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicablepracticable after the end of each of the fiscal quarters of the Borrower, but in any event not later than ninety (90) days after the end of each of its fiscal years, unlessFebruary 5, in the case of MCRCeach fiscal quarter ending on December 31, MCRC has filed for an extension in accordance with Section 7.4(g) hereofand November 5, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLPeach fiscal quarter ending on September 30, if prepared, copies of the audited unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries and the unaudited consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such yearquarter, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case statement of MCRC, the audited consolidated balance sheet of MCRC income and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements statement of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous portion of the Borrower's fiscal year and then elapsed, all such statements to be in reasonable detail, detail and prepared in accordance with GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared without qualification together with a certification by the Accountantsprincipal financial or accounting officer of the Borrower that the information contained in such financial statements fairly presents the financial position of the Borrower and its Subsidiaries on the date thereof (subject to year-end adjustments);
(b) as soon as practicable, but in any event not later than forty-five within thirty (4530) days after the end of each of its first three (3) month in each fiscal quarters:
(i) in the case of MCRLP, if prepared, copies year of the Borrower, unaudited monthly consolidated balance sheet financial statements of MCRLP the Borrower and its subsidiaries as at the end of Subsidiaries for such quarter, the related month and unaudited consolidated monthly consolidating financial statements of operations, owner's equity (deficit) and cash flows for the portion of MCRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC Borrower and its subsidiaries (includingSubsidiaries for such month, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and each prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SEC, together with a certification by the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) and its subsidiaries on the date thereof (subject to year-end adjustments)generally accepted accounting principles;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit C hereto signed by (the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, "Compliance Certificate") and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 ss.13 and Section 9 hereof(if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(d) promptly if requested by contemporaneously with the Administrative filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the equity holders or debt holders of the Borrower;
(e) upon request of either Agent, a copy appraisal reports in form and substance and from independent appraisers satisfactory to the Agents, stating the then current fair market value of each report of the Vessels subject to a Vessel Mortgage, all such appraisals to be conducted and made at the expense of the Borrower (including any so-called letters of reportable conditions or letters of no material weakness) submitted it being understood that the Agents may, upon notice to the Borrower, MCRC, or any other Guarantor or any obtain such appraisals and that the cost of their respective subsidiaries all such appraisals will be paid by the Accountants Borrower); provided that (i) unless a Default or Event of Default shall have occurred or be continuing, the Agents shall not request the Borrower to obtain, and the Agents shall not obtain on their own, any such appraisal before November 1, 1999 and (ii) such appraisals shall be conducted by Xxxxxx, Xxxxxx & Xxxxxxx, Inc., unless such firm is unable or unwilling to conduct such appraisals in connection a timely fashion, in which case the Agents shall be entitled to select an alternative appraisal firm;
(f) promptly, copies of all material pleadings, notices, orders and other papers filed in the Cases and copies of all reports filed with each annual audit the United States Trustee in the Cases;
(g) not less frequently than weekly, (i) a consolidated thirteen (13) week rolling cash flow forecast of the books Borrower and its Subsidiaries in form and substance reasonably satisfactory to the Agents, (ii) a cash flow report showing actual performance for each weekly period reflected in the Cash Budget and variance of actual performance from projected performance in the Cash Budget, and (iii) a summary of accounts payable of the Borrower and its Subsidiaries;
(h) from time to time upon request, a written or oral report, in reasonable detail, as to the status of the Borrower, MCRC, or any 's plan of reorganization; and
(i) from time to time such other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining financial data and information (including accountants' management letters and updates to any phase of the business of the Borrower, MCRC or any other Guarantor or any such subsidiary;Cash Budget) as either Agent may reasonably request.
Appears in 1 contract
Samples: Debtor in Possession Revolving Credit and Term Loan Agreement (Hvide Marine Inc)
Financial Statements, Certificates and Information. The Borrower will deliver to the Agent (and the Agent will cause MCRC to promptly, after receipt thereof, deliver to the Administrative Agent:Banks):
(a) as soon as practicable, but in any event not later than ninety one hundred ten (90110) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared and certified without qualification by Ernst & Young or by other independent certified public accountants reasonably satisfactory to the AccountantsAgent;
(b) as soon as practicable, but in any event not later than fortysixty-five (4565) days after the end of each of its the first three (3) fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief financial officer or vice president the treasurer of finance the Borrower that to the best of MCRLP or MCRCthe Borrower's knowledge, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT D hereto signed certified by the chief financial officer or vice president of finance the treasurer of the MCRLP or MCRC, as applicable, Borrower in substantially the form of EXHIBIT C attached hereto (a "COMPLIANCE CERTIFICATE") and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 7 hereof and Section 9 hereof;(if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date; and
(d) promptly if requested from time to time such other financial data and information as the Agent or any Bank may reasonably request. All Confidential Information concerning the Borrower supplied by the Administrative AgentBorrower to the Banks pursuant to the terms hereof will be held in confidence by the Banks and the Banks shall not disclose such Confidential Information except that the Borrower authorizes each Bank to disclose any Confidential Information obtained pursuant to this Credit Agreement or any other Loan Document (i) to any bank regulatory authority, (ii) to any independent auditor or counsel or participant or potential assignee or potential participant of such Bank, PROVIDED that such independent auditor or counsel or participant or potential assignee or potential participant enters into a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted confidentiality agreement with the Borrower substantially similar to such Bank's agreement with the Borrower, MCRC, or any and (iii) to all other Guarantor or any of their respective subsidiaries by appropriate governmental regulatory authorities to the Accountants in connection with each annual audit of the books of the Borrower, MCRC, or any other Guarantor or such subsidiary extent required by such Accountants Bank by law or in connection with any interim audit thereof pertaining subpoena, but only to any phase of the business of the Borrowerextent permitted by applicable laws and regulations, MCRC or any other Guarantor or any such subsidiary;including those applying to classified material.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries and the consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case statement of MCRC, the audited consolidated balance sheet income and consolidating statement of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of cash flow for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, andand as to the consolidated statements, in each case, accompanied by an auditor's report prepared certified without qualification by Xxxxxx Xxxxxxxx LLP or by other independent certified public accountants satisfactory to the AccountantsAgent;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries as at the end of such quarterSubsidiaries, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief financial officer or vice president Chief Financial Officer of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the Chief Financial Officer of the Borrower in substantially the form of EXHIBIT D Exhibit C hereto signed by (the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, "Compliance Certificate") and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 §11 and Section 9 hereof(if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(d) promptly contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Borrower;
(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 §8.4.2 or, if applicable, updating any later such projections delivered in response to a request pursuant to this §9.4(e);
(f) from time to time such other financial data and information (including accountants, management letters) as the Agent or any Bank may reasonably request;
(g) as soon as practicable, but in any event within three (3) days after the end of the closing of the internal records of the Borrower each month in each fiscal year of the Borrower (which in no event shall be later than twenty (20) days after the end of each month), unaudited monthly consolidated financial statements of the Borrower and its Subsidiaries for such month, prepared in accordance with generally accepted accounting principles as adjusted in clause (a) of the definition of generally accepted accounting principles, together with a certificate signed by the Chief Financial 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);
(h) Prior to the Formula Date, no later than ten (10) Business Days after the end of each fiscal quarter or at such earlier time as the Agent may reasonably request, a Borrowing Base Report setting forth the Borrowing Base with respect to Eligible Accounts Receivable as at the end of such fiscal quarter or other date so requested by the Administrative AgentAgent (subject to adjustments for returns and bad debt) which Borrowing Base Report shall govern the interest paid on Revolving Credit Loans for the next such fiscal quarter;
(i) After the Formula Date, simultaneously with each Loan Request pursuant to §3.6 and within fifteen (15) days after the end of each calendar month, a copy Borrowing Base Report setting forth the Borrowing Base with respect to Eligible Accounts Receivable as of such date (subject to adjustments for returns and bad debt);
(j) within fifteen (15) days after the end of each calendar quarter an Accounts Receivable aging report as at the end of such calendar quarter substantially in the form of Exhibit K hereto; and
(including any so-called letters k) within three (3) Business Days after the end of reportable conditions each four week period or letters of no material weakness) submitted at such earlier time as the Agent may reasonably request, a Cash Flow Projection in the form and substance satisfactory to the Borrower, MCRC, or any other Guarantor or any Agent for the Borrower and its Domestic Subsidiaries prepared on a rolling basis for the next succeeding 13-week period (the "Cash Flow Projection") and within five (5) Business Days after the end of their respective subsidiaries by each four week period a report in the Accountants form and substance satisfactory to the Agent comparing actual cash flow for the four week period most recently ended to the projected cash flow for such four week period set forth in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;preceding Cash Flow Projection.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower Company will deliver and will cause MCRC to deliver to BankBoston at the Administrative AgentCompany's expense:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedCompany, the audited consolidated and reviewed consolidating balance sheet sheets of MCRLP Andersen Group, Inc. and its subsidiaries Subsidiaxxxx (xncluding, without limitation, the Company and its Subsidiaries) as at the end of such year, and the related audited consolidated and reviewed consolidating statements of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 conformity with GAAPgenerally accepted accounting principles, and, in each case, and accompanied by a review thereof (or, if requested at any time by BankBoston, an auditor's report prepared without qualification unqualified (except for non-material qualifications acceptable to BankBoston) audit thereof) by independent certified public accountants satisfactory to BankBoston, which statements shall be accompanied by annual projections submitted by the Accountantsmanagement of the Company in form and detail acceptable to BankBoston;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) fiscal quarters:
(i) in the case of MCRLP, if preparedcalendar quarter, copies of the unaudited consolidated and consolidating balance sheet sheets of MCRLP the Company and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated and consolidating statements of income and consolidated statements of operations, owner's equity (deficit) and cash flows flow for the portion of MCRLPthe Company's fiscal year then elapsed, with supplemental consolidating schedules (except and aging reports with respect to statements of cash flow accounts receivable and owner's equity) provided by MCRLP; and
(ii) in the case of MCRCaccounts payable, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance conformity with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Company that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Company and its subsidiaries Subsidiaries on the date thereof (subject to customary year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT D hereto signed certified by the chief principal financial or accounting officer or vice president of finance of the MCRLP or MCRC, as applicable, Company in form and (if applicable) reconciliations substance reasonably satisfactory to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, BankBoston and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 7.24 and Section 9 hereof(if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(d) prior to the effectiveness of an IPO, promptly if requested upon the mailing or filing thereof, copies of all financial statements, reports and proxy statements mailed to the public shareholders of Andersen Group, Inc. or any controllixx xxxckholder of the Company, and copies of all registration statements and Forms 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission (or any successor thereto) or any national securities exchange by Andersen Group, Inc. or any controlling xxxxxxxlder of Andersen Group, Inc.;
(x) xfter the effectiveness of an IPO, promptly upon the mailing or filing thereof, copies of all financial statements, reports and proxy statements mailed to the public shareholders of the Company, and copies of all registration statements and Forms 10-K, 10-Q and 8-K filed with the Securities and Exchange Commission (or any successor thereto) or any national securities exchange by the Administrative AgentCompany or any controlling stockholder of the Company;
(f) contemporaneously with the same being provided to the Senior Lenders, a copy of each report such other financial data and other information as are provided to the Senior Lenders; and
(g) from time to time such other financial data and information (including any so-called letters of reportable conditions or letters of no material weaknessaccountants' management letters) submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;as BankBoston may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower BGI will deliver and will cause MCRC to deliver to the Administrative Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrowers, the audited consolidated balance sheet of MCRLP BGI and its subsidiaries Subsidiaries as at the end last day of such fiscal year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such fiscal year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, GAAP (except as required by a change in each case, accompanied by an auditor's report prepared without qualification GAAP or as concurred to 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; DB3/ 204224713.6
(b) as soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of each of its the first three (3) fiscal quarters:
(i) in quarters of each fiscal year of the case of MCRLP, if preparedBorrowers, copies of the unaudited consolidated balance sheet of MCRLP BGI and its subsidiaries Subsidiaries as at the end last day of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLP's the Borrowers’ fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, BGI that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) BGI and its subsidiaries Subsidiaries on the date thereof (subject to the absence of footnotes and year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of BGI in substantially the form of EXHIBIT D Exhibit C hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, (a “Compliance Certificate”) and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 §10 and Section 9 hereof(if applicable) reconciliations to reflect changes in GAAP since December 31, 2019;
(d) promptly if requested by contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of any of the Borrowers;
(e) upon request of the Administrative Agent, a copy of each report BGI’s annual consolidated financial plan; and
(f) from time to time such other financial data and information (including any so-called letters of reportable conditions or letters of no material weaknessaccountants’ management letters) submitted to as the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Administrative Agent may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Barnes Group Inc)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentLenders:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements and consolidating statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, andaudited and certified, in each case, accompanied by an auditor's report prepared 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 Ernst & Young, LLP or other independent certified public accountants reasonably satisfactory to the AccountantsAdministrative Agent;
(b) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of Holdings, the consolidated balance sheet of Holdings and its Subsidiaries as at the end of such year, and the related consolidated and consolidating 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 GAAP, audited and certified, without qualification and without an expression of uncertainty as to the ability of Holdings or any of its Subsidiaries to continue as going concerns, by Ernst & Young, LLP or other independent certified public accountants reasonably satisfactory to the Administrative Agent;
(c) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its the first three (3) fiscal quarters:
(i) in quarters of the case of MCRLPBorrower, if preparedCLIF, XXXX XX, XXXX III, XXXX XX and each other Securitization Entity formed after the Closing Date, copies of the unaudited consolidated balance sheet of MCRLP (i) the Borrower and its subsidiaries Subsidiaries, (ii) CLIF, (iii) XXXX XX, (iv) XXXX III, (v) XXXX XX, and (vi) each other Securitization Entity, in each case as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLP's the Borrower’s, CLIF’s, CLIF II’s, CLIF III’s, CLIF IV’s or other Securitization Entity, as the case may be, fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents in all material respects the financial position of MCRLP the Borrower and its Subsidiaries, CLIF, XXXX XX, XXXX III, XXXX XX or MCRC (other Securitization Entity, as the case may be) and its subsidiaries , on the date thereof (subject to normal year-end adjustmentsadjustments made in accordance with GAAP and the absence of footnotes); provided, however, that if any of CLIF, XXXX XX, XXXX III, XXXX XX or other Securitization Entity shall hold no assets and have no outstanding debt during any such fiscal quarter, such entity shall not be required to deliver the reports described in this clause (c);
(cd) 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 Holdings and its Subsidiaries, copies of the unaudited consolidated balance sheet of Holdings as at the end of such quarter, and the related consolidated statement of income and consolidated statement of cash flow for the portion of Holdings’ 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 Holdings that the information contained in such financial statements fairly presents in all material respects the financial position of Holdings and its Subsidiaries on the date thereof (subject to normal year-end adjustments made in accordance with GAAP and the absence of footnotes);
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) above, (for the first three fiscal quarters of each fiscal year), i) a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT Exhibit D hereto signed by (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, covenants contained in §10 and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement DateBalance Sheet Date and (ii) a management report in the form of Exhibit J, but only together with a bullet-point list of factors affecting market fluctuations analyzed separately for each business in form and substance as reasonably acceptable to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereofAdministrative Agent;
(df) promptly if contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission;
(g) (i) within fifteen (15) Business Days after the end of each calendar month, (ii) within five (5) Business Days of the Drawdown Date of each Revolving Credit Loan or of the date of issuance, extension or renewal of each Letter of Credit, (iii) within five (5) Business Days prior to the date of any removal or sale of any assets from the Borrowing Base other than asset sales made in the ordinary course of business in an aggregate amount not to exceed $1,000,000, and (iv) at each other time as the Administrative Agent may reasonably request, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month, Drawdown Date (which Borrowing Base Report shall give effect to the transactions to occur on such Drawdown Date), sale or release date (which Borrowing Base Report shall give effect to such sale or release) or other date so requested by the Administrative Agent;
(h) as soon as available (but in no event later than March 31st of each year), a copy of the annual consolidated budget for the Borrower and its Subsidiaries for each report fiscal year;
(i) together with the quarterly financials delivered pursuant to §8.3(b), a separate calculation of the utilization rate for the Eligible Containers as a group and the Eligible Chassis as a group and a separate weighted average calculation of the per diem rate for the preceding fiscal quarter for the Eligible Containers as a group and the Eligible Chassis as a group; and
(j) from time to time such other financial data and information (including any so-called letters of reportable conditions or letters of no material weaknessaccountants’ management letters) submitted to as the Borrower, MCRC, Administrative Agent or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (SeaCube Container Leasing Ltd.)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to -------------------------------------------------- deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared and certified without qualification by Deloitte & Touche 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 forty-forty- five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT Exhibit D hereto signed by and setting forth in reasonable detail ------- - computations evidencing compliance with the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, covenants contained in (S)8 and (if applicable) reconciliations to reflect changes in GAAP generally accepted accounting principles since the applicable Financial Statement Balance Sheet Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by contemporaneously with the Administrative Agentfiling or mailing thereof, copies of all material of a copy of each report (including any so-called letters of reportable conditions financial nature filed with the Securities and Exchange Commission or letters of no material weakness) submitted sent to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books stockholders of the Borrower; and
(e) from time to time upon request of the Agent, MCRCannual projections of the Borrower and its Subsidiaries updating those projections delivered to the Banks and referred to in (S)5.4.2 or, if applicable, updating any later such projections delivered in response to a request pursuant to this (S)6.4(e); and
(f) from time to time such other financial data and information (including accountants' management letters) as the Agent 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, MCRC or any other Guarantor or any such subsidiary;Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (New England Business Service Inc)
Financial Statements, Certificates and Information. The Borrower will deliver and will or cause MCRC to deliver be delivered to each of the Administrative AgentLenders:
(a1) as soon as practicable, but in any event not later than ninety (90) 90 days after the end of each fiscal year of its fiscal yearsthe Borrower, unless, in copies of the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited consolidated unaudited balance sheet of MCRLP and its subsidiaries the Borrower at the end of such year, and the related audited consolidated unaudited statements of operationsincome, owner's changes in members' equity (deficit) and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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, and, in each case, accompanied by an auditor's report prepared without qualification by the Accountants;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) fiscal quarters:
(i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP and its subsidiaries as at the end of such quarter, the related unaudited consolidated statements of operations, owner's equity (deficit) and cash flows for the portion of MCRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP the Borrower on the date thereof and any other information the Lenders may need to complete a financial analysis of the Borrower;
(2) as soon as practicable, but in any event not later than 45 days after the end of each of the first three (3) fiscal quarters of the Borrower, copies of the unaudited balance sheet of the Borrower as at the end of such quarter, and the related unaudited statements of income, changes in shareholders' equity and cash flows for the portion of the Borrower's fiscal year then elapsed, all in reasonable detail and prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or MCRC (as accounting officer of the case may be) and its subsidiaries Borrower that the information contained in such financial statements fairly presents the financial position of the Borrower on the date thereof (subject to year-end adjustments);
(c3) if the Borrower becomes a reporting company, copies of any documents or reports filed by the Borrower with the SEC simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year), a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only thereof to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereofSEC;
(d) promptly if requested by the Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;
Appears in 1 contract
Samples: Revolving Credit Agreement (Wellsford Real Properties Inc)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC BPI to (and BPI will) deliver (as applicable) to the Administrative Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBPI, the audited consolidated balance sheet of MCRLP BPI and its subsidiaries Subsidiaries at the end of such year, and the related audited consolidated statements of operationsincome, owner's changes in shareholder’s equity (deficit) and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRCcase, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures as of the end of and for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAPGAAP 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 ’s report prepared without qualification by the AccountantsAccountants other than a qualification solely with respect to internal controls over financial reporting as required under Section 404 of the Sarbanes Oxley Act;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) March 31, June 30 and September 30 fiscal quarters:
(i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP BPI and its subsidiaries Subsidiaries, as at the end of such quarter, and the related unaudited consolidated statements of operationsincome, owner's changes in shareholders’ equity (deficit) and cash flows for the portion of MCRLP's BPI’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on (which may be provided by inclusion in the same basis as used in preparation of MCRC's Form 10-Q statements of BPI filed with the SECSEC for such period provided pursuant to clause (g) below), together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower and BPI that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) BPI and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustmentsadjustments none of which shall be materially adverse);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) above, (for the first three fiscal quarters of each fiscal year), i) a statement Compliance Certificate in the form of EXHIBIT D Exhibit C-1 hereto signed by an Authorized Officer, which Compliance Certificate and each other Compliance Certificate required pursuant to the chief financial officer terms of this Agreement shall be delivered by electronic communication, including fax or vice president of finance of email, unless the MCRLP Agent or MCRCa Bank requests executed originals, as applicableand 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 applicable Financial Statement Date, but only to the extent that date of such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, statements and (ii) a quarterly worksheet in the case form of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereofExhibit C-1A;
(d) promptly if requested by the Administrative Agentas they become available, a copy of each report (including any so-called letters of reportable conditions or letters of no material weaknessmanagement letters) submitted to the Borrower, MCRC, Borrower or any other Guarantor or any of their respective subsidiaries BPI by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, Borrower or any other Guarantor or such subsidiary 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 with (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 operations 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 end 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, MCRC BPI, their respective Subsidiaries, the Real Estate Assets and the Partially-Owned Entities as the Agent or any other Guarantor 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 subsidiary;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 Borrower Borrowers will deliver and will cause MCRC to deliver to the Administrative Agent and any Lender upon request of such Lender (made through the Administrative Agent:):
(a) as soon as practicable, but within five (5) days after the filing with the Securities and Exchange Commission of the Parent’s Annual Report on Form 10-K with respect to each fiscal year (and in any event not later than ninety within one hundred (90100) days after the end of each of its such fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedyear), the audited consolidated balance sheet sheets of MCRLP and its subsidiaries the Consolidated Group as at the end of such year, and the related audited consolidated statements of operations, owner's equity (deficit) income and cash flows for of the year then endedConsolidated Group, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year and year, all such financial statements to be in reasonable detail, prepared in accordance with GAAP, and, in each case, GAAP and audited and accompanied by an auditor's a report prepared without qualification by and opinion of the Accountants, which report and opinion shall state that such financial statements present fairly the financial position of the Consolidated Group and shall not be subject to any qualification as to going concern or the scope of the audit;
(b) as soon as practicable, but within five (5) days after the filing with the Securities and Exchange Commission of the Parent’s Quarterly Report on Form 10-Q with respect to each of the first three (3) fiscal quarters of each fiscal year (and in any event not later than forty-five (45) within 55 days after the end of each of its first three (3) such fiscal quarters:
(i) in the case of MCRLP, if preparedquarter), copies of the unaudited consolidated balance sheet sheets of MCRLP the Consolidated Group as at the end of such fiscal quarter, and its subsidiaries the related consolidated statements of income and cash flows of the Consolidated Group as at the end of such quarter, subject to normal year-end adjustments and the related unaudited consolidated statements absence of operationsfootnotes, owner's equity (deficit) and cash flows for the portion of MCRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on subject to normal year-end adjustments and the same basis as used in preparation absence of MCRC's Form 10-Q statements filed with the SECfootnotes, together with a certification by the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, CFO that the information contained in such consolidated financial statements are prepared in accordance with GAAP and fairly presents present the consolidated financial position condition of MCRLP or MCRC (the Consolidated Group as at the case may be) and its subsidiaries 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 subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT D hereto signed Compliance Certificate certified by the chief financial officer or vice president of finance CFO that the Consolidated Group is in compliance with the covenants contained in Sections 7.14 and 7.15 as of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since end of the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, period setting forth in reasonable detail computations evidencing compliance such compliance; provided, that if the Borrowers shall at the time of issuance of such certificate 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 a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with the covenants contained in Section 8.7 and Section 9 hereofrespect thereto;
(d) contemporaneously with, or promptly if requested following, the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Borrowers; and
(e) from time to time, such other financial data and other information (including accountants’ management letters and a copy of the Borrowers’ annual budget and projections for any fiscal year) as the Lenders may reasonably request. Borrowers shall be deemed to have delivered reports and other information referred to in clauses (a), (b), and (d) of this Section 6.04 when (A) such reports or other information have been posted on the Internet website of the Securities and Exchange Commission (xxxx://xxx.xxx.xxx) or on Parent’s Internet website as previously identified to the Administrative Agent and Lenders and (B) Parent or Borrowers have notified the Administrative Agent by electronic mail of such posting. The Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Arrangers may, but shall not be obligated to, make available to the Lenders materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Parent or its Subsidiaries, 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 Borrowers hereby agree that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, a copy of each report the Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information (including any so-called letters of reportable conditions or letters of no material weaknessalthough it may be sensitive and proprietary) submitted with respect to the BorrowerBorrowers or their securities for purposes of United States Federal and state securities laws (provided, MCRChowever, or any other Guarantor or any of their respective subsidiaries by that to the Accountants extent such Borrower Materials constitute Information, they shall be treated as set forth in connection with each annual audit Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the books Platform designated “Public Side Information;” and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the BorrowerPlatform not designated “Public Side Information.” Notwithstanding the foregoing, MCRC, or the Borrowers shall be under no obligation to xxxx 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, MCRC or any other Guarantor or any such subsidiary;Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower Borrowers will deliver to each of the Lenders and will cause MCRC to deliver to the Administrative Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrowers, the audited consolidated balance sheet of MCRLP MSSR and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, andand certified, in each case, accompanied by an auditor's report prepared without qualification and without an expression of uncertainty as to the ability of MSSR or any of its Subsidiaries to continue as going concerns, by PricewaterhouseCoopers, any other nationally recognized accounting firm, or by other independent certified public accountants reasonably satisfactory to the AccountantsRequired Lenders;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrowers, copies of the unaudited consolidated balance sheet of MCRLP MSSR and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for such fiscal quarter and the portion of MCRLP's such Persons’ fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) setting forth in each case in comparative form the case of MCRC, copies figures for the corresponding period or periods of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's previous fiscal year then elapsedand the comparisons to projections for such period, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10(subject to year-Q statements filed with the SECend adjustments and footnote information required by GAAP), together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, MSSR that the information contained in such financial statements fairly presents in all material respects the financial position of MCRLP or MCRC (as the case may be) MSSR and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustmentsadjustments and footnote information required by GAAP);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of the Borrowers in substantially the form of EXHIBIT D Exhibit C hereto signed by (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, covenants contained in § 11 and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Balance Sheet Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or, sent to the equity holders of any Borrower or any Guarantor;
(e) within sixty (60) days after the beginning of each fiscal year of the Borrowers and, if requested 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 (balance sheet, income statement and cash flow statement) of the Borrowers and their Subsidiaries organized for the next fiscal year on a 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(e) and simultaneously therewith updated Schedules 8.19 and 8.22, which Schedules shall be correct and complete as of the date delivered to the Administrative Agent;
(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. Documents required to be delivered pursuant to § 9.4(a) or § 9.4(b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post such documents, or provides a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 17.8; 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: (a) 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 (b) 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 § 9.4 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 Arranger and/or Book Runner will make available to the Lenders materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a copy of each report (including any so“Public Lender”) may have personnel who do not wish to receive material non-called letters of reportable conditions or letters of no material weakness) submitted public information with respect to the Borrower, MCRCBorrowers or their Affiliates, or any other Guarantor 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 Borrowers hereby agree that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger, the Book Runner and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective subsidiaries by securities for purposes of United States Federal and state securities laws (provided, however, that to the Accountants extent such Borrower Materials constitute Information, they shall be treated as set forth in connection with each annual audit § 17.5); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the books Platform designated “Public Investor;” and (z) the Administrative Agent, the Arranger and Book Runner shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Platform not designated “Public Investor.”
Appears in 1 contract
Samples: Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.)
Financial Statements, Certificates and Information. The Borrower and the Trust will deliver and will cause MCRC to deliver to the Administrative Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedTrust, the audited consolidated balance sheet of MCRLP the Trust and its subsidiaries Subsidiaries at the end of such year, and the related audited consolidated statements of operationsincome, owner's changes in shareholder’s equity (deficit) and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRCcase, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures as of the end of and for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAPGAAP (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 ’s report prepared without qualification by the AccountantsAccountants (and the Borrower also shall deliver the foregoing for FPLP on a consolidated basis); together with 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 Agent);
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) March 31, June 30 and September 30 fiscal quarters:
(i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP the Trust and its subsidiaries Subsidiaries, as at the end of such quarter, and the related unaudited consolidated statements of operationsincome, owner's changes in shareholders’ equity (deficit) and cash flows for the portion of MCRLP's the Trust’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on (which may be provided by inclusion in the same basis as used in preparation of MCRC's Form 10-Q statements of the Trust filed with the SECSEC for such period and delivered to the Agent), together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower and the Trust that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Trust and its subsidiaries 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 adjustmentsadjustments none of which shall be materially adverse and the absence of footnotes) (and the Borrower also shall deliver the foregoing for FPLP 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 Unencumbered 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 Unencumbered 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) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT D Exhibit C-2 hereto signed by the chief financial or accounting officer or vice president of finance of the MCRLP or MCRC, as applicableBorrower, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof§10;
(df) promptly if requested by the Administrative Agentas they become available, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor the Trust or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, or any other Guarantor the Trust or such subsidiary Subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase of the business of the Borrower, MCRC or any other Guarantor the Trust or any such subsidiarySubsidiary;
(g) contemporaneously with (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;
(h) 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 the Trust;
(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 after 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;
(l) [Reserved]; and
(m) from time to time such other financial data and other information about the Borrower, the Trust, their respective Subsidiaries, the Real Estate Assets 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 Unencumbered Property and (iii) insurance coverage.
Appears in 1 contract
Samples: Revolving Credit Agreement (First Potomac Realty Trust)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentLenders:
(a) as soon as practicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP (i) the Borrower and (ii) CLI and its subsidiaries Subsidiaries, in each case, as at the end of such year, and the related audited consolidated statements and consolidating statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, andaudited and certified, in each case, accompanied by an auditor's report prepared without qualification and without an expression of uncertainty as to the ability of the Borrower or CLI, as the case may be, to continue as going concerns, by Ernst & Young, LLP or other independent certified public accountants reasonably satisfactory to the AccountantsAgent;
(b) as soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower and CLI, copies of the unaudited consolidated balance sheet of MCRLP (i) the Borrower and (ii) CLI and its subsidiaries Subsidiaries, in each case as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLP's the Borrower’s or CLI’s, as the case may be, fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or vice president of finance of MCRLP or MCRCCLI, as applicablethe case may be, that the information contained in such financial statements fairly presents in all material respects the financial position of MCRLP the Borrower or MCRC (CLI and its Subsidiaries, as the case may be) and its subsidiaries , on the date thereof (subject to normal year-end adjustmentsadjustments made in accordance with GAAP and the absence of footnotes);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT Exhibit D hereto signed by (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing the chief financial officer or vice president Consolidated Tangible Net Worth of finance of the MCRLP or MCRC, as applicable, CLI and its Subsidiaries and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Balance Sheet Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed by CLI or any of its Subsidiaries with the Securities and Exchange Commission;
(e) (i) on each Determination Date and (ii) within five (5) Business Days prior to the date of any removal or sale of any assets from the Borrowing Base, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month, sale date or other date so requested by the Administrative Agent;
(f) together with the quarterly financials delivered pursuant to Section 8.4(b), a copy separate calculation of each report the Utilization Rate for the Eligible Containers as a group and a separate weighted average calculation of the per diem rate for the preceding fiscal quarter for the Eligible Containers as a group; and
(g) from time to time such other financial data and information (including any so-called letters of reportable conditions or letters of no material weaknessaccountants’ management letters) submitted to as the Borrower, MCRC, Agent or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Seacastle Inc.)
Financial Statements, Certificates and Information. The Borrower Borrowers will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrowers, the audited consolidated balance sheet of MCRLP the Borrowers and its subsidiaries their Subsidiaries and the consolidating (prepared by division rather than by corporate entity) balance sheet of the Borrowers and their Subsidiaries, each as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equityconsolidating (prepared by division rather than by corporate entity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case statement of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of income for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared and certified without qualification by Xxxxxx Xxxxxxxx LLP or by other independent certified public accountants satisfactory to the AccountantsAgent;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrowers, copies of the unaudited consolidated balance sheet of MCRLP the Borrowers and its subsidiaries their Subsidiaries and the unaudited consolidating (prepared by division rather than by corporate entity) balance sheet of the Borrowers and their Subsidiaries, each as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity income and consolidated statement of cash flow and consolidating (deficitprepared by division rather than by corporate entity) statement of income for such quarter and cash flows for the portion of MCRLP's the Borrowers' fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrowers that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrowers and its subsidiaries their Subsidiaries on the date thereof (subject to year-end adjustments);
(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 Borrowers, the unaudited consolidated balance sheet of the Borrowers and their Subsidiaries and unaudited consolidating (prepared by division rather than by corporate entity) balance sheet of the Borrowers and their Subsidiaries, each as at the end of such month, and the related consolidated statement of income and consolidated statement of cash flow and consolidating (prepared by division rather than by corporate entity) statement of income for such month, all in reasonable detail and each prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or accounting officer of the Borrowers that the information contained in such financial statements fairly presents the financial condition of the Borrowers and their Subsidiaries on the date thereof (subject to year-end adjustments);
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of the Borrowers in substantially the form of EXHIBIT D C hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 10 and Section 9 hereof(if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(de) promptly contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Borrowers;
(f) (i) on or prior to the end of each fiscal year of the Borrowers and their Subsidiaries and otherwise from time to time upon request of the Agent, a monthly budget for the next fiscal year of the Borrowers and their Subsidiaries including PRO FORMA consolidated and consolidating (prepared by division rather than by corporate entity) statements of income and consolidated statement of cash flows of the Borrowers and their Subsidiaries, and (ii) if prepared by the Borrowers or requested by the Administrative Agent, projections updating those projections delivered to the Banks and referred to in Section 7.4.3 or, if applicable, updating any later such projections delivered in response to a copy of each report request pursuant to this Section 8.4(f); and
(g) from time to time such other financial data and information (including any so-called letters of reportable conditions or letters of no material weaknessaccountants, management letters) submitted to as the Borrower, MCRC, Agent or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (American Restaurant Group Inc)
Financial Statements, Certificates and Information. The Borrower Credit Parties will deliver and will cause MCRC to deliver to the Administrative AgentAgent and the Lenders:
(a) as soon as practicable, but in any event not no later than the earlier of ninety (90) days after the end of each of its fiscal years, unless, in Fiscal Year and fifteen (15) days after the case of MCRC, MCRC has date required to be filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
SEC, (i) in the case of MCRLP, if prepared, the audited consolidated and consolidating balance sheet of MCRLP Holdings and its subsidiaries Subsidiaries, as at the end of such yearFiscal Year, and the related audited consolidated and consolidating statements of income or operations, owner's equity (deficit) and cash flows and shareholders’ equity for the year then endedsuch Fiscal Year, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPGAAP consistently applied and such consolidated financial statements to be audited and accompanied by a report and opinion prepared in accordance with generally accepted auditing standards by Xxxxxx LLP or by other independent certified public accountants reasonably satisfactory to the Administrative Agent and certified without qualification and without expression of uncertainty as to the ability of Holdings and its Subsidiaries to continue as going concerns, andtogether with (x) a written statement from such accountants (to the extent then available on commercially reasonable terms) to the effect that, in each casemaking the examination necessary to said certification, accompanied nothing has come to their attention to cause them to believe that any Default or Event of Default has occurred or specifying those Defaults or Events of Defaults that they have become aware of and (y) a copy of their accountants’ management letter (if any) for such Fiscal Year and (ii) a Compliance Certificate duly executed by an auditor's report a Financial Officer of Holdings, which, among other things, (A) attaches and certifies to the foregoing consolidated and consolidating financial statements, accountants statements, management letters and a management discussion and analysis prepared without qualification in connection with such financial statements (which may be the management discussion and analysis provided for in Holdings’ Form 10-K report), (B) certifies that the information contained in such consolidating financial statements fairly presents in all material respects the financial condition of the Holdings and its Subsidiaries on the dates indicated therein, (C) appends computations evidencing the Fixed Charge Coverage Ratio 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, (D) appends calculations of the Capital Expenditures made by the AccountantsCredit Parties during such Fiscal Year and specifying whether the Credit Parties have complied with Section 7.14, (E) appends computations evidencing the Leverage Ratio for the Reference Period ended as of the last day of such Fiscal Year and specifying whether the Credit Parties have complied with Section 7.15, and (F) 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 forty-five thirty (4530) days after the end of each Fiscal Month (including the last Fiscal Month of its first three (3) fiscal quarters:
each Fiscal Year), (i) in the case of MCRLP, if prepared, copies of the unaudited monthly consolidated and consolidating financial statements of Holdings and its Subsidiaries for such Fiscal Month, including the consolidated and consolidating balance sheet of MCRLP Holdings and its subsidiaries Subsidiaries, as at the end of such quarterFiscal Month, the related unaudited consolidated and consolidating statements of income or operations, owner's equity (deficit) and cash flows and shareholders’ equity for such Fiscal Month and for the portion of MCRLP's fiscal year the Fiscal Year then elapsedended, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) each setting forth in comparative form the case of MCRC, copies figures for the corresponding Fiscal Month of the unaudited consolidated balance sheet of MCRC previous Fiscal Year and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the corresponding portion of MCRC's fiscal year then elapsedthe previous Fiscal Year, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and each, prepared in accordance with GAAP on consistently applied, (ii) a statement of change in any intercompany accounts, and (iii) for each Fiscal Month that is the same basis as used in preparation last Fiscal Month of MCRC's Form 10-Q statements filed with a Fiscal Quarter, a Compliance Certificate duly executed by a Financial Officer of Holdings, which, among other things, (A) attaches and certifies to the SECforegoing financial statements, together with a certification by the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, (B) certifies that the information contained in such financial statements fairly presents in all material respects the financial position condition of MCRLP or MCRC (as the case may be) Holdings and its subsidiaries Subsidiaries on the date thereof dates indicated therein (subject to year-end adjustmentsadjustments and the absence of footnotes);
, (cC) simultaneously sets forth in comparative form the results for and through such Fiscal Month with the delivery most recent projections delivered to the Administrative Agent pursuant to Section 6.04(e), (D) appends computations evidencing the Fixed Charge Coverage Ratio for the Reference Period ended as of the financial statements referred to in subsections last day of such Fiscal Quarter and specifying whether the Credit Parties have complied with Section 7.13, (aE) (appends calculations of the Capital Expenditures made by the Credit Parties during such Fiscal Month and for the fourth fiscal quarter portion of each fiscal yearthe Fiscal Year then ended and specifying whether the Credit Parties have complied with Section 7.14, (F) above and (b) (appends computations evidencing the Leverage Ratio for the first three fiscal quarters of each fiscal year), a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance Reference Period ended as of the MCRLP or MCRClast day of such Fiscal Quarter and specifying whether the Credit Parties have complied with Section 7.15, as applicable, and (G) sets forth (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by the Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit date of the books last audited financial statements of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Holdings and its Subsidiaries and
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will shall, and (if applicable) shall cause each other Loan Party to, deliver and will or cause MCRC to deliver be delivered to the Administrative AgentAgent 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, if applicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedcalendar year, the audited consolidated Consolidated balance sheet of MCRLP REIT and its subsidiaries Subsidiaries at the end of such year, and the related audited consolidated statements of operationsincome, owner's equity (deficit) changes in capital and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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, and, in each case, accompanied by an auditor's report prepared without qualification by the Accountants;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) fiscal quarters:
(i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP and its subsidiaries as at the end of such quarter, the related unaudited consolidated statements of operations, owner's equity (deficit) and cash flows for the portion of MCRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SEC, together with a certification by an Authorized Officer or the chief financial officer or vice president accounting officer of finance of MCRLP or MCRC, as applicable, REIT that the information contained in such financial statements fairly presents in all material respects the financial position of MCRLP or MCRC (as the case may be) REIT and its subsidiaries Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a member firm of KPMG International Cooperative or another nationally recognized accounting firm reasonably approved by the Agent;
(b) within five (5) days of the filing of REIT’s Form 10-Q with the SEC, if applicable, but in any event not later than sixty (60) days after the end of each calendar quarter of each year, copies of the unaudited consolidated balance sheet of REIT and its Subsidiaries, as at the end of such quarter, and the related unaudited consolidated statements of income and cash flows for the portion of 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 chief financial officer or accounting officer of REIT that the information contained in such financial statements fairly presents in all material respects the financial position of REIT and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT D hereto signed (a “Compliance Certificate”) certified by an Authorized Officer or the chief financial officer or vice president chief accounting officer of finance REIT in the form of Exhibit E hereto (or in such other form as the MCRLP Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or MCRC, non-compliance (as applicable, and (if applicablethe case may be) with the covenants contained in § 9 setting forth reconciliations to reflect changes in GAAP since the applicable Financial Statement Balance Sheet Date, but only with the Compliance Certificate for the quarter ending DecemberMarch 31, 20162018 being prepared by 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 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 calendar quarter for each of the Eligible Real Estate Assets, prepared on a basis consistent with the statements furnished to the extent 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 REIT that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants information contained in Section 8.7 and Section 9 hereofsuch statement fairly presents in all material respects Net Operating Income of the Eligible Real Estate Assets for such periods;
(d) promptly if requested by simultaneously with the Administrative Agentdelivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $10,000,000 or more of Loan Parties 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, 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 report material Lease or material amendment to any material Lease entered into with respect to an Eligible Real Estate Asset during such calendar quarter (including any so-called letters the fourth calendar quarter in each year);
(f) simultaneously with the delivery of reportable conditions or letters of no material weaknessthe financial statements referred to in subsections (a) submitted and (b) above, to the Borrowerextent not included in public filings by or on behalf of REIT, MCRCand upon request by the Agent, a statement (i) listing the material Real Estate owned by Loan Parties and their Subsidiaries (or in which Loan Parties or their Subsidiaries own an interest) and stating the location thereof, the date acquired and the acquisition cost, (ii) listing the Indebtedness of Loan Parties 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 Loan Parties and their Subsidiaries which are Development Properties and providing a brief summary of the status of such development;
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the owners of Borrower or REIT;
(h) to the extent requested by the Agent, copies of all annual federal income tax returns and amendments thereto of Loan Parties;
(i) promptly upon the filing hereof, copies of any registration statements (other Guarantor 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 Borrower or REIT shall file with the SEC;
(j) to the extent requested by the Agent, evidence reasonably satisfactory to the Agent of the timely 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 Loan Parties and their Subsidiaries for such calendar year; and
(l) from time to time such other financial data and information in the possession of Loan Parties or their respective subsidiaries by Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against Loan Parties and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting Loan Parties) as the Accountants Agent may reasonably request. Any material to be delivered pursuant to this §7.4 (collectively, “Information Materials”) may be delivered electronically directly to the Agent or made available to the Agent pursuant to an accessible website and the Lenders provided that such material is in connection with each annual audit of a format reasonably acceptable to the books of the BorrowerAgent, MCRC, or any other Guarantor or and such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase of the business of the Borrower, MCRC or any other Guarantor or any such subsidiary;material shall
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative Agent:Lenders):
(a) as soon as practicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedCAI, the audited consolidated balance sheet of MCRLP CAI and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, andand certified, in each case, accompanied by an auditor's report prepared without qualification and without an expression of uncertainty as to the ability of CAI, or any of its Subsidiaries to continue as going concerns, by KPMG LLP or by other independent certified public accountants reasonably satisfactory to the AccountantsAdministrative Agent;
(b) as soon as practicable, but in any event not later than forty-five forty‑five (45) days after the end of each of its the first three (3) fiscal quarters:
(i) in the case quarters of MCRLP, if preparedeach fiscal year of CAI and its Subsidiaries, copies of the unaudited consolidated balance sheet of MCRLP CAI and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLP's the fiscal year of CAI and its Subsidiaries then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, CAI and the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) CAI and its subsidiaries Subsidiaries on the date thereof (subject to year-end year‑end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of CAI in substantially the form of EXHIBIT Exhibit D hereto signed by (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, covenants contained in §10 and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Balance Sheet Date;
(i) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or with any national securities exchange or sent to the stockholders of CAI or its 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 notice or other correspondence received from the Securities 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 CAI or any of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect;
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above and, on each Principal Payment Date, but only to a Borrowing Base Report setting forth the extent that such changes in GAAP affect Borrowing Base as of the financial covenants set forth in Section 9 hereof; andend of the immediately preceding calendar month, a listing of all Containers previously included in the case Borrowing Base that has been subject to an Event of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 Loss and Section 9 a calculation of any Required Principal Amount pursuant to §3.2.1 hereof;
(df) promptly if requested simultaneously with the delivery of the items referred to in subsections (a) and (b) above, a report listing the aggregate number of Containers owned, rented, leased or managed by the Borrower and its Subsidiaries, together with monthly utilization rate and per diem rental rate information with respect to the Containers in form and detail satisfactory to the Administrative Agent; and
(g) from time to time such other financial data and information (including, without limitation, accountants’ management letters and consolidating financial statements of CAI and its Subsidiaries) as the Administrative Agent or any Lender may reasonably request. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders materials and/or information provided by or on behalf of the Borrower or any of its Subsidiaries hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on Xxxxxxxxxx.xxx 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”). The Borrower hereby agrees that so long as the Borrower 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 Administrative Agent, a copy of each report (including the Arranger and the Lenders to treat the Borrower Materials as not containing any so-called letters of reportable conditions or letters of no material weakness) submitted non‑public information with respect to the BorrowerBorrower or its securities for purposes of United States Federal Securities Laws and state securities laws (provided, MCRChowever, or any other Guarantor or any of their respective subsidiaries by that to the Accountants extent the Borrower Materials constitute Information, they shall be treated as set forth in connection with each annual audit §16.4); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the books 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 BorrowerPlatform not designated “Public Investor.” Notwithstanding the foregoing or anything to the contrary contained herein, MCRC, or Borrower shall not be under any other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining obligation to any phase of xxxx the business of the Borrower, MCRC or any other Guarantor or any such subsidiary;Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower Borrowers will deliver to each of the Agent, Canadian Agent and will cause MCRC to deliver to the Administrative AgentLenders:
(a) as soon as practicable, but in any event not later than ninety ninety-five (9095) days after the end of each fiscal year of its fiscal yearsZale, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP Zale and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures as of the end of and for the previous fiscal year and year, all such consolidated statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, and, in and each case, accompanied by an auditor's report prepared of such financial statements certified without qualification by Arthxx Xxxexxxx XXX or by other independent certified public accountants reasonably satisfactory to the AccountantsAgent, and (ii) the annual 10-K reports of Zale filed with the Securities and Exchange Commission; and (iii) a certification by a Senior Officer of Zale setting forth the rating of the Rated Debt;
(b) as soon as practicable, but in any event not later than forty-five fifty (4550) days after the end of each of its the first three (3) fiscal quarters:
quarters of each fiscal year of Zale, (i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP Zale and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income for such quarter and cash flows for the portion of MCRLPZale's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements and the related consolidated statement of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRCZale's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on generally accepted accounting principles (subject to year-end adjustments and except for the same basis as used in preparation absence of MCRC's Form 10-Q statements filed with the SECnotes), together with (ii) a certification by a Senior Officer of each of the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, Borrowers that the information contained in such management financial statements fairly presents in all material respect the financial position of MCRLP or MCRC (as the case may be) Zale and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments), (iii) a narrative discussion of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commission;
(ci) simultaneously with the delivery of the management prepared financial statements referred to in subsection (b) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (ii) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by a Senior Officer of each of the Borrowers in substantially the form of EXHIBIT Exhibit D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 12 (and including calculations with respect to the financial information required by Section 9 hereof7.14 in connection with possible Performance Adjustments) and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles since the Balance Sheet Date;
(d) promptly if requested within ten (10) Business Days after the filing or mailing thereof, copies of all material reports of a financial nature filed by the Administrative AgentBorrowers with the Securities and Exchange Commission or sent to the stockholders of Zale (other than the annual 10-K reports and the quarterly 10-Q reports of Zale delivered pursuant to Sections 10.4(a) and (b), a copy respectively);
(e) to the Agent within thirty (30) days after the end of each report fiscal quarter (including any so-called letters except that the Settlement Statement for the last fiscal quarter of reportable conditions or letters a fiscal year of no material weaknessthe Borrowers may be delivered simultaneously with the delivery of the financial statements referred to in subsections (a) submitted and (b) above), the monthly "Settlement Statements" of ZFT (the "Settlement Statement") for the immediately preceding fiscal quarter, prepared in accordance with the requirements of the Receivables Facility Documents and such other information with respect to the Borrower, MCRC, or any other Guarantor or any purchase and sale of their respective subsidiaries by ZFT Receivables pursuant to the Accountants Receivables Facility Documents as the Agent shall request in connection with each annual audit the exercise of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiaryits reasonable discretion;
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP and its subsidiaries at the end of such year, the related audited consolidated statements of operations, owner's equity (deficit) and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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, and, in each case, accompanied by an auditor's report prepared without qualification by the Accountants;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP and its subsidiaries the Borrower as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP the Borrower on the date thereof (subject to year-end adjustments);
(b) 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 financial statements of the Borrower for such month prepared in accordance with generally accepted accounting principles, together with a certification by the principal financial or MCRC (as accounting officer of the case may be) Borrower that the information contained in such financial statements fairly presents the financial condition of the Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously contemporaneously with the delivery filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year), a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereofBorrower;
(d) promptly if at the end of each week, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar day or other date so requested by the Administrative Agent, a copy ;
(e) within fifteen (15) days after the end of each report calendar month, an Accounts Receivable aging report; and
(f) from time to time such other financial data and information (including any so-called letters of reportable conditions or letters of no material weaknessaccountants, management letters) submitted to as the Borrower, MCRC, Agent or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Outsource International Inc)
Financial Statements, Certificates and Information. The Borrower Purchaser will deliver and will cause MCRC to deliver to the Administrative AgentLiquidator:
(a) (i) as soon as practicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedPurchaser, the audited consolidated balance sheet Statutory Annual Financial Statements of MCRLP and its subsidiaries at the end of Purchaser for such fiscal year, the related audited consolidated statements of operations, owner's equity (deficit) and cash flows for the year then ended, in each case (except for to be delivered to the Liquidator simultaneously with the delivery of such financial statements of cash flow to the Insurance Department, and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) simultaneously with delivery to the Insurance Department and in any event not later than one hundred eighty (180) days after the case end of MCRCeach fiscal year of the Purchaser, the audited consolidated balance sheet Statutory Annual Financial Statements of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of Purchaser prepared by a nationally recognized accounting firm for such fiscal year, the related audited consolidated statements of operations, stockholders' equity (deficit) together with an actuarial opinion prepared by a nationally recognized actuary and cash flows management discussion and analysis for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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, and, in each case, accompanied by an auditor's report prepared without qualification by the AccountantsPurchaser;
(b) as soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of each of its the first three (3) fiscal quarters:
quarters of each fiscal year of the Purchaser (i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP and its subsidiaries as at the end of such quarter, the related unaudited consolidated statements of operations, owner's equity (deficit) and cash flows for the portion of MCRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies Statutory Quarterly Financial Statements of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of Purchaser for such fiscal quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SEC, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Purchaser that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) and its subsidiaries Purchaser on the date thereof (except for provisions for footnotes, reserves and accruals and subject to year-year- end adjustments), in each case to be delivered to the Liquidator simultaneously with the delivery of such financial statements to the Insurance Department;
(c) the financial statements referred to in Sections 8.4 (a) and (b) hereof shall include a presentation with respect to the Disputed Claim Reserve;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT D hereto signed certified by the chief principal financial or accounting officer or vice president of finance of the MCRLP or MCRC, as applicable, and Purchaser (if applicablea “Compliance Certificate”) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 Article X as of the end of the period then ended and Section 9 hereof(if applicable) reconciliations to reflect changes in SAP since the Balance Sheet Date;
(de) not later than one hundred twenty (120) days after the beginning of each fiscal year of the Purchaser, an actuarial opinion (accompanied by reasonably sufficient detail) as to the adequacy of the Disputed Claim Reserve as at the last day of such fiscal year. Each such opinion shall be prepared and delivered by an actuary of recognized national standing. Each such opinion shall be in scope and detail reasonably satisfactory to the Liquidator;
(f) copies of all accountants’ management letters within ten (10) days of the receipt thereof; and
(g) promptly if requested by after request, such other financial data and information as the Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted Liquidator may reasonably request from time to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;time.
Appears in 1 contract
Samples: Purchase Agreement
Financial Statements, Certificates and Information. The Borrower Credit Parties will deliver and will cause MCRC to deliver to the Administrative AgentAgent and, upon request, to the Lenders:
(a) as soon as practicable, but in any event not no later than ninety one hundred twenty (90120) days after the end of each of its fiscal yearsFiscal Year, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited consolidated and consolidating balance sheet of MCRLP the Parent and its subsidiaries Subsidiaries, as at the end of such yearFiscal Year, and the related audited consolidated and consolidating statements of income or operations, owner's equity (deficit) and cash flows and shareholders’ equity for the year then endedsuch Fiscal Year, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, in each case, GAAP consistently applied and such consolidated and consolidating financial statements to be audited and accompanied by an auditor's a report and opinion prepared in accordance with 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 the Borrowers and their Subsidiaries to continue as going concerns, 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 AccountantsBorrower Representative, which, among other things, (A) attaches and certifies to the foregoing consolidated and consolidating financial statements, accountants statements, management letters and a management discussion and analysis prepared in connection with such financial statements, (B) certifies that the information contained in such consolidated and consolidating financial statements fairly presents in all material respects the financial condition of the Parent and its Subsidiaries on the dates indicated therein, (C) appends computations evidencing the Consolidated Fixed Charge Coverage Ratio for the Reference Period ended as of the last day of such Fiscal Year regardless of whether compliance with such covenant is then required, and to the extent applicable, specifying whether the Credit Parties have complied with Section 7.13, (D) appends calculations of the Consolidated EBITDA for the Credit Parties during such Fiscal Year and specifying whether the Credit Parties have complied with Section 7.14 and (E) 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 forty-five thirty (4530) days after the end of each of its first three Fiscal Month (3) fiscal quarters:
(i) or, in the case of MCRLPthe last Fiscal Month of each Fiscal Year, if prepared, copies forty-five (45) days) (i) the unaudited monthly consolidated financial statements of the unaudited Parent and its Subsidiaries for such Fiscal Month, including the consolidated balance sheet of MCRLP the Parent and its subsidiaries Subsidiaries, as at the end of such quarterFiscal Month, the related unaudited consolidated statements of income or operations, owner's equity (deficit) and cash flows and shareholders’ equity for such Fiscal Month and for the portion of MCRLP's fiscal year the Fiscal Year then elapsedended, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) each setting forth in comparative form the case of MCRC, copies figures for the corresponding Fiscal Month of the unaudited consolidated balance sheet of MCRC previous Fiscal Year and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the corresponding portion of MCRC's fiscal year then elapsedthe previous Fiscal Year, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and each, prepared in accordance with GAAP on consistently applied and (ii) a Compliance Certificate duly executed by a Financial Officer of the same basis as used in preparation of MCRC's Form 10-Q statements filed with Borrowers, which, among other things, (A) attaches and certifies to the SECforegoing financial statements, together with a certification by the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, (B) certifies that the information contained in such financial statements fairly presents in all material respects the financial position condition of MCRLP or MCRC (as the case may be) Parent and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustmentsadjustments and the absence of footnotes);
, (cC) simultaneously sets forth in comparative form the results for and through such Fiscal Month with the delivery most recent projections delivered to the Administrative Agent pursuant to Section 6.04(e), (D) appends computations evidencing the Consolidated Fixed Charge Coverage Ratio for the Reference Period ended as of the financial statements referred last day of such Fiscal Month regardless of whether compliance with such covenant is then required, and to in subsections the extent applicable, specifying whether the Credit Parties have complied with Section 7.13, (aE) (appends calculations of the Consolidated EBITDA for the fourth fiscal quarter of each fiscal year) above and (b) (Credit Parties for the first three fiscal quarters of each fiscal year), a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance Reference Period ended as of the MCRLP or MCRClast day of such Fiscal Month regardless of whether compliance with such covenant is then required and, as to the extent applicable, and specifying whether the Credit Parties have complied with Section 7.14, (F) sets forth (if applicable) reconciliations to reflect changes in GAAP since the applicable date of the last audited financial statements of the Parent and its Subsidiaries and (G) states that such Financial Statement DateOfficer has reviewed this Agreement and the other Loan Documents and has no knowledge of any Default or Event of Default during such Fiscal Month, or if such Financial Officer has such knowledge, specifying each Default or Event of Default and the nature thereof to the Administrative Agent’s reasonable satisfaction;
(c) as soon as practicable, but only to in any event no later than thirty (30) days after the extent that such changes end of each Fiscal Month, a management discussion and analysis prepared in GAAP affect connection with the financial covenants set forth in Section 9 hereof; and, in statements of the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 Parent and Section 9 hereofits Subsidiaries for such Fiscal Month;
(d) promptly as soon as available and in any event within two Business Days after the end of each calendar week, and at such other 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 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 on 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 copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit description of the books weekly change in each category of Inventory, in each case, as of the Borrowerclose of business on the last day of such week, MCRCin each case, or any other Guarantor or such subsidiary accompanied by such Accountants or in connection with any interim audit thereof pertaining to any phase of supporting detail, documentation and information as the business of the Borrower, MCRC or any other Guarantor or any such subsidiaryAdministrative Agent shall reasonably request;
Appears in 1 contract
Samples: Credit Agreement (PetIQ, Inc.)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC Furnish to deliver to each of the Administrative AgentLenders:
(a) as soon as practicable, but in any event not later than ninety (90) Within 180 days after the end of each fiscal year of its fiscal yearsthe Parent Guarantor and each Borrower, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited consolidated balance sheet sheets of MCRLP the Parent Guarantor and its subsidiaries consolidated Subsidiaries, as at the end of such fiscal year, the related audited and consolidated statements of operationsincome, owner's equity (deficit) and cash flows and retained earnings of the Parent Guarantor and its consolidated Subsidiaries for the fiscal year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year and year, all such statements to be in reasonable detail, prepared in accordance with GAAP, and, in each casegenerally accepted accounting principles consistently applied, accompanied by an auditor's a report and opinion of KPMG LLP (or such other independent certified public accountants of nationally recognized standing as are reasonably acceptable to the Lenders), which report and opinion shall have been prepared without qualification by the Accountantsin accordance with generally accepted auditing standards and shall be unqualified as to "going concern" status, scope of audit or conformity with GAAP;
(b) By no later than December 31, 2004, with respect to the fiscal quarter ended September 30, 2004, and as soon as practicableavailable and, but in any event not later than forty-five event, within ninety (4590) days after the end of each of its the first three (3) fiscal quarters:
(i) quarters in the case of MCRLP, if prepared, copies each fiscal year of the unaudited Parent Guarantor thereafter a consolidated balance sheet of MCRLP the Parent Guarantor and its subsidiaries consolidated Subsidiaries as at the end of such fiscal quarter, the related unaudited and consolidated statements of operations, owner's equity (deficit) income and cash flows reconciliation of surplus of the Parent Guarantor and its consolidated Subsidiaries for the portion of MCRLP's the fiscal year then elapsedended, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and detail, prepared in accordance with GAAP on generally accepted accounting principles consistently applied, except for the same basis as used in preparation lack of MCRC's Form 10-Q statements filed with the SECfootnotes thereto, together with a certification and certified by the chief principal financial or principal accounting officer of the Parent Guarantor or vice president of finance of MCRLP or MCRCeach such Borrower, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) and its subsidiaries on the date thereof (, but subject to normal, recurring year-end adjustments);
(c) simultaneously Following a request therefor by the Agent, within 30 days after the end of each fiscal year of the Parent Guarantor, Parent Guarantor's financial forecast for the fiscal year following such fiscal year (the first forecast subject to this clause (c) being that for the 2006 fiscal year), including its cash flow forecast;
(d) (i) Concurrently with the delivery of the each financial statements referred statement pursuant to in subsections paragraphs (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)this Section 6.4, a statement certificate substantially in the form of EXHIBIT Exhibit D hereto (a Compliance Certificate), signed by the chief financial officer or vice president of finance on behalf of the MCRLP Parent Guarantor by its principal financial or MCRCprincipal accounting officer and (ii) on each Payment Date, a Borrowing Base Certificate signed on behalf of each Borrower by an Authorized Officer as to such Borrower's Borrowing Base as at such date;
(e) Promptly upon receipt thereof, copies of all management letters of substance and other reports of substance which are submitted to any Borrower or the Parent Guarantor by their accountants in connection with any annual or interim audit of the books of any Borrower or the Parent Guarantor made by such accountants;
(f) Promptly upon their becoming available, copies of such other financial statements and reports, if any, as applicableeach Borrower and/or the Parent Guarantor may be required to file with the Securities and Exchange Commission or any similar or corresponding governmental commission, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Datedepartment or agency substituted therefor, but only or any similar or corresponding governmental commission, department, board, bureau, or agency, federal or state, to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereofare publicly available;
(dg) promptly if requested by If and when any Borrower and/or the Administrative AgentParent Guarantor gives or is required to give notice to the PBGC of any "Reportable Event" (as defined in Section 4043 of ERISA) with respect to any Plan that might constitute grounds for a termination of such Plan under Title IV of ERISA, or knows that any member of the Controlled Group or the plan administrator of any Plan has given or is required to give notice of any such Reportable Event, a copy of each report (including any so-called letters the notice of reportable conditions such Reportable Event given or letters of no material weakness) submitted required to be given to the BorrowerPBGC;
(h) Upon the request of the Agent, MCRCwithin 180 days after the end of each fiscal year of the Parent Guarantor, an updated Dynamar Report (or any equivalent such report) of each Lessee; and
(i) With reasonable promptness, such other Guarantor data as the Agent or any of their respective subsidiaries by the Accountants in connection with each annual audit Lenders (acting through the Agent so long as no Event of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Default is continuing) may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower Borrowers will deliver and will cause MCRC CRC to deliver to the Administrative Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g)::
(i) in the case of MCRLPCRLP, if prepared, the audited consolidated balance sheet of MCRLP CRLP and its subsidiaries at the end of such year, and the related audited consolidated statements of operations, owner's equity (deficit) and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLPCRLP; and
(ii) in the case of MCRCCRC, the audited consolidated balance sheet of MCRC CRC and its subsidiaries (including, without limitation, MCRLP CRLP and its subsidiaries) at the end of such year, and the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRCCRC; each 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, and, in each case, accompanied by an auditor's report prepared without qualification by the Accountants;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) fiscal quarters:
(i) in the case of MCRLPCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP CRLP and its subsidiaries as at the end of such quarter, and the related unaudited consolidated statements of operations, owner's equity (deficit) and cash flows for the portion of MCRLPCRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLPCRLP; and
(ii) in the case of MCRCCRC, copies of the unaudited consolidated balance sheet of MCRC CRC and its subsidiaries (including, without limitation, MCRLP CRLP and its subsidiaries) as at the end of such quarter, and the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRCCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRCCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRCCRC's Form 10-Q statements filed with the SEC, together with a certification by the chief financial officer of CRLP or vice president of finance of MCRLP or MCRCCRC, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP CRLP or MCRC CRC (as the case may be) and its subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT Exhibit D hereto signed by the chief financial officer or vice president of finance of the MCRLP CRLP or MCRCCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 ss.9 hereof; and, in the case of MCRLPCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 ss.9 hereof;
(d) promptly if requested by the Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the any Borrower, MCRCCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the any Borrower, MCRCCRC, 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 any Borrower, MCRC CRC or any other Guarantor or any such subsidiary;
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature sent to the holders of any Indebtedness of any Borrower or any Guarantor (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) subject to subsection (g) below, 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 CRC;
(g) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of CRC, copies of the Form 10-K statement filed by CRC 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 CRC, copies of the Form 10-Q statement filed by CRC with the SEC for such fiscal quarter, provided that, in either case, if CRC has filed an extension for the filing of such statements, CRC shall deliver such statements to the Agent within ten (10) days after the filing thereof with the SEC which filing shall be within fifteen (15) days of CRC's filing for such extension or such sooner time as required to avert a Material Adverse Effect on CRC;
(h) from time to time, but not more frequently than once each calendar quarter so long as no Default or Event of Default has occurred and is continuing, such other financial data and information about the Borrowers, CRC, the other Guarantors, their respective Subsidiaries, the Real Estate and the Partially-Owned Entities as the Agent or any Lender acting through the Agent may reasonably request, and which is prepared by such Person in the normal course of its business or is required for securities and tax law compliance including without limitation complete rent rolls for the Unencumbered Properties and summary rent rolls for the other Real Estate, existing environmental reports, and insurance certificates with respect to the Real Estate (including the Unencumbered Properties) and tax returns (following the occurrence of a Default or Event of Default or, in the case of CRC, to confirm CRC's REIT status); and
(i) simultaneously with the delivery of the financial statements referred to in subsection (a) above, updates to Schedule 6.3 and Schedule 6.19 hereto.
Appears in 1 contract
Samples: Revolving Credit Agreement (Cali Realty Corp /New/)
Financial Statements, Certificates and Information. The Borrower will deliver to the Agent (and the Agent will cause MCRC to promptly, after receipt thereof, deliver to the Administrative Agent:Lenders):
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, in each case, accompanied by an auditor's report prepared and certified without qualification by Ernst & Young LLP or by other independent certified public accountants reasonably satisfactory to the AccountantsAgent;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its the first three (3) fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief financial officer or vice president the treasurer of finance the Borrower that to the best of MCRLP or MCRCthe Borrower's knowledge, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT D hereto signed certified by the chief financial officer or vice president of finance the treasurer of the MCRLP or MCRCBorrower in substantially the form of EXHIBIT D attached hereto (a "COMPLIANCE CERTIFICATE") and setting forth in reasonable detail computations evidencing compliance with the covenants contained in section 7 hereof, as applicable, a calculation of the Obligor Group Requirement and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Balance Sheet Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) from time to time such other financial data and information as the Agent or any Lender may reasonably request; and
(i) promptly if requested upon becoming aware of the occurrence of any actual or claimed "EVENT OF TERMINATION" under and as defined in any of the documents relating to the Securitization, notice thereof, which notice shall describe such Event of Termination and indicate what steps the Borrower and its Subsidiaries are taking to remedy the same and (ii) promptly upon request therefor, such other information with respect to the Securitization as the Agent shall reasonably request. All Confidential Information concerning the Borrower supplied by the Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted Borrower to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries Lenders pursuant to the terms hereof will be held in confidence by the Accountants in connection with each annual audit Lenders and the Lenders shall not disclose such Confidential Information except as permitted by section 23 of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;this Credit Agreement.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries and the consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case statement of MCRC, the audited consolidated balance sheet income and consolidating statement of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of cash flow for such year, the related audited consolidated statements of operationsand, stockholders' equity (deficit) and cash flows except for the fiscal year then endedending September 30, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 2001, each setting forth in comparative form the figures for the previous fiscal year year, and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, and, in each caseas to the consolidated statements, accompanied by an auditor's report prepared 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 PricewaterhouseCoopers LLP or by other independent certified public accountants reasonably satisfactory to the Agent, together with a certification by the Accountantsprincipal financial or accounting officer of the Borrower that, after reviewing the financial statements, they have obtained no knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of each of its the first three (3) fiscal quarters:
(i) in quarters of each fiscal year of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries and the unaudited consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow and consolidating statement of income and consolidating statement of cash flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year), a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP generally accepted accounting principles since the applicable Financial Statement Balance Sheet Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by contemporaneously with the Administrative Agentfiling or mailing thereof, copies of all material of a copy of each report (including any so-called letters of reportable conditions financial nature filed with the Securities and Exchange Commission or letters of no material weakness) submitted sent to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books stockholders of the Borrower;
(e) from time to time upon request of the Agent, MCRCprojections 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 as the Agent 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, MCRC or any other Guarantor or any such subsidiary;Bank may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver to the Agent (and the Agent will cause MCRC to promptly, after receipt thereof, deliver to the Administrative Agent:Lenders):
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, in each case, accompanied by an auditor's report prepared and certified without qualification by Ernst & Young LLP or by other independent certified public accountants reasonably satisfactory to the AccountantsAgent;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its the first three (3) fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief financial officer or vice president the treasurer of finance the Borrower that to the best of MCRLP or MCRCthe Borrower's knowledge, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT D hereto signed certified by the chief financial officer or vice president of finance the treasurer of the MCRLP or MCRC, as applicable, Borrower in substantially the form of EXHIBIT C attached hereto (a "COMPLIANCE CERTIFICATE") and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 8 hereof, a calculation of the Obligor Group Requirement and Section 9 hereof(if applicable) reconciliations to reflect changes in GAAP since the Balance Sheet Date;
(d) from time to time such other financial data and information as the Agent or any Lender may reasonably request; and
(i) promptly if requested upon becoming aware of the occurrence of any actual or claimed "EVENT OF TERMINATION" under and as defined in any of the documents relating to the Securitization, notice thereof, which notice shall describe such Event of Termination and indicate what steps the Borrower and its Subsidiaries are taking to remedy the same and (ii) promptly upon request therefor, such other information with respect to the Securitization as the Agent shall reasonably request. All Confidential Information concerning the Borrower supplied by the Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted Borrower to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries Lenders pursuant to the terms hereof will be held in confidence by the Accountants in connection with each annual audit Lenders and the Lenders shall not disclose such Confidential Information except as permitted by Section 25 of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;this Credit Agreement.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver to the Agent and the Agent will cause MCRC to then deliver to the Administrative AgentBanks:
(a) as soon as practicableavailable, but in any event not later than ninety five (9095) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries, each as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRCflow, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared and certified without qualification (except that a qualification for a change in accounting principles with which such firm of independent certified public accountants concurs shall be permitted) by Ernst & Young L.L.P. or by other independent certified public accountants reasonably satisfactory to the AccountantsAgent;
(b) as soon as practicableavailable, but in any event not later than forty-five fifty (4550) days after the end of each of its the first three (3) fiscal quarters:
(i) quarters in each fiscal year of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by a financial officer, vice president-finance, vice president-accounting, treasurer or controller of the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by a financial officer, vice president-finance, vice president-accounting, treasurer or controller of the Borrower in substantially the form of EXHIBIT D G hereto signed by (a "Compliance Certificate") and setting forth in reasonable detail computations evidencing compliance with (i) the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, covenants contained in Section 10 and (if applicable) reconciliations to reflect changes in GAAP generally accepted accounting principles since the applicable Financial Statement DateBalance Sheet Date and (ii) if the Total Commitment exceeds $100,000,000, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case evidence of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 provisions of the Senior Notes restricting the amount of Indebtedness the Borrower and Section 9 hereofits Subsidiaries may incur;
(d) promptly if requested by as soon as practicable but in any event, within (20) Business Days after the Administrative Agentfiling or mailing thereof, a copy copies of each report all financial statements filed with the Securities and Exchange Commission or sent to the stockholders of the Borrower as such;
(e) from time to time such other financial data and information (including any so-called letters of reportable conditions or letters of no material weaknessinformation relating to Guaranteed Pension Plans and accountants' management letters) submitted to as the Borrower, MCRC, Agent or any other Guarantor or Bank may reasonably request; and
(f) as soon as available, but in any of their respective subsidiaries by event not later than sixty (60) days following the Accountants in connection with each annual audit delivery of the books financial statements referred to in clause (a) above or at any other time at which the Borrower shall desire to submit such updated projections, consolidated projections of the Borrower, MCRC, or any other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining Borrower and its Subsidiaries updating those projections delivered pursuant to any phase of the business of the Borrower, MCRC or any other Guarantor or any such subsidiary;this Section 8.4(f).
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will shall, and (if applicable) shall cause each other Loan Party to, deliver and will or cause MCRC to deliver be delivered to the Administrative AgentAgent 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, if applicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedcalendar year, the audited consolidated Consolidated balance sheet of MCRLP REIT and its subsidiaries Subsidiaries at the end of such year, and the related audited consolidated statements of operationsincome, owner's equity (deficit) changes in capital and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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, and, in each case, accompanied by an auditor's report prepared without qualification by the Accountants;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) fiscal quarters:
(i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP and its subsidiaries as at the end of such quarter, the related unaudited consolidated statements of operations, owner's equity (deficit) and cash flows for the portion of MCRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SEC, together with a certification by an Authorized Officer or the chief financial officer or vice president accounting officer of finance of MCRLP or MCRC, as applicable, REIT that the information contained in such financial statements fairly presents in all material respects the financial position of MCRLP or MCRC (as the case may be) REIT and its subsidiaries Subsidiaries, and accompanied by an auditor’s report prepared without qualification as to the scope of the audit by a member firm of KPMG International Cooperative or another nationally recognized accounting firm reasonably approved by the Agent;
(b) within five (5) days of the filing of REIT’s Form 10-Q with the SEC, if applicable, but in any event not later than sixty (60) days after the end of each calendar quarter of each year, copies of the unaudited consolidated balance sheet of REIT and its Subsidiaries, as at the end of such quarter, and the related unaudited consolidated statements of income and cash flows for the portion of 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 chief financial officer or accounting officer of REIT that the information contained in such financial statements fairly presents in all material respects the financial position of REIT and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT D hereto signed (a “Compliance Certificate”) certified by an Authorized Officer or the chief financial officer or vice president chief accounting officer of finance REIT in the form of Exhibit E hereto (or in such other form as the MCRLP Agent may approve from time to time) setting forth in reasonable detail computations evidencing compliance or MCRC, non-compliance (as applicable, and (if applicablethe case may be) with the covenants contained in § 9 setting forth reconciliations to reflect changes in GAAP since the applicable Financial Statement Balance Sheet Date, but only with the Compliance Certificate for the quarter ending December 31, 2016 being prepared by 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 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 calendar quarter for each of the Eligible Real Estate Assets, prepared on a basis consistent with the statements furnished to the extent 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 REIT that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants information contained in Section 8.7 and Section 9 hereofsuch statement fairly presents in all material respects Net Operating Income of the Eligible Real Estate Assets for such periods;
(d) promptly if requested by simultaneously with the Administrative Agentdelivery of the financial statements referred to in clause (a) above, the statement of all contingent liabilities involving amounts of $10,000,000 or more of Loan Parties 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, 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 report material Lease or material amendment to any material Lease entered into with respect to an Eligible Real Estate Asset during such calendar quarter (including any so-called letters the fourth calendar quarter in each year);
(f) simultaneously with the delivery of reportable conditions or letters of no material weaknessthe financial statements referred to in subsections (a) submitted and (b) above, to the Borrowerextent not included in public filings by or on behalf of REIT, MCRCand upon request by the Agent, a statement (i) listing the material Real Estate owned by Loan Parties and their Subsidiaries (or in which Loan Parties or their Subsidiaries own an interest) and stating the location thereof, the date acquired and the acquisition cost, (ii) listing the Indebtedness of Loan Parties 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 Loan Parties and their Subsidiaries which are Development Properties and providing a brief summary of the status of such development;
(g) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature, reports or proxy statements sent to the owners of Borrower or REIT;
(h) to the extent requested by the Agent, copies of all annual federal income tax returns and amendments thereto of Loan Parties;
(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 Borrower or REIT shall file with the SEC;
(j) to the extent requested by the Agent, evidence reasonably satisfactory to the Agent of the timely 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 Loan Parties and their Subsidiaries for such calendar year; and
(l) from time to time such other financial data and information in the possession of Loan Parties or their respective Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against Loan Parties and any settlement discussions relating thereto, property inspection and environmental reports and information as to zoning and other legal and regulatory changes affecting Loan Parties) 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, Borrower shall, and shall cause each other Loan Party to, deliver paper copies thereof to the Agent and the Lenders. Borrower authorizes the Agent and Arrangers to disseminate any such materials through the use of Intralinks, SyndTrak or any other Guarantor or electronic information dissemination system, and Borrower releases the Agent and the Lenders from any of their respective subsidiaries by the Accountants liability in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;therewith.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower Parent and the Borrowers will deliver and will cause MCRC to deliver to the Administrative AgentAgent and each of the Banks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedParent, the audited consolidated balance sheet of MCRLP the Parent and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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 GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared and certified without qualification by the AccountantsPricewaterhouseCoopers LLP or by other independent certified public accountants of recognized national standing, which statements shall include a footnote which identifies any Default or Event of Default;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its the first three (3) fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedParent, copies of the unaudited consolidated balance sheet of MCRLP the Parent and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Parent's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial officer or vice president accounting officers of finance each of MCRLP or MCRC, as applicable, the Borrowers and the Parent that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Parent and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with promptly upon the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officers of the Borrowers and the Parent in substantially the form of EXHIBIT D C attached hereto signed by (i) stating no Default or Event of Default exists and is continuing, (ii) stating the chief financial officer Borrowers and the Parent are in compliance with SECTION 8.6(c) hereof, (iii) reaffirming the representations and warranties contained herein including, without limitation, SECTION 7.21, or vice president if any such representation or warranty is stated to have been made solely as of finance an earlier date, such representation or warranty is reaffirmed as if made on such date and (iv) setting forth in reasonable detail computations (A) calculating the Leverage Ratio for purposes of determining the MCRLP or MCRCApplicable Margin, as applicable, (B) evidencing compliance with the covenants contained in SECTION 10 hereof and (if applicable) reconciliations to reflect changes in GAAP generally accepted accounting principles since the applicable Financial Statement Balance Sheet Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested upon the filing or mailing thereof, copies of all material information of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Parent;
(e) on December 1 of each year an annual operating and capital budget for the following year in a form reasonably acceptable to the Administrative Agent;
(f) on each June 30 and January 31 of each calendar year of the Parent, or more frequently as determined by the Administrative AgentAgent or the Majority Banks, the Borrowers will, at their own expense, obtain and deliver to the Administrative Agent and the Banks appraisal reports in form and substance and from appraisers reasonably satisfactory to the Administrative Agent (each such report herein, an "Appraisal"), stating the then current fair market values of the Vessels subject to a copy Vessel Mortgage, PROVIDED, THAT, (i) the Administrative Agent may, upon notice to the Borrowers, obtain such Appraisals and the cost of each report such Appraisals shall be paid by the Borrowers and (ii) unless a Default or Event of Default shall have occurred and be continuing, the Borrowers shall not be obligated to pay for more than two Appraisals during any one calendar year; and
(g) from time to time such other financial data and information (including any so-called letters of reportable conditions or letters of no material weaknessaccountants' management letters) submitted to as the Borrower, MCRC, Administrative Agent or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Trico Marine Services Inc)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to -------------------------------------------------- deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared and certified without qualification by Deloitte & Touche 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 forty-forty- five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit G hereto signed by and setting forth in reasonable detail ------- - computations evidencing compliance with the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, covenants contained in (S)8 and (if applicable) reconciliations to reflect changes in GAAP generally accepted accounting principles since the applicable Financial Statement Balance Sheet Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by contemporaneously with the Administrative Agentfiling or mailing thereof, copies of all material of a copy of each report (including any so-called letters of reportable conditions financial nature filed with the Securities and Exchange Commission or letters of no material weakness) submitted sent to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books stockholders of the Borrower; and
(e) from time to time upon request of the Agent, MCRCannual projections of the Borrower and its Subsidiaries updating those projections delivered to the Banks and referred to in (S)5.4.2 or, if applicable, updating any later such projections delivered in response to a request pursuant to this (S)6.4(e); and
(f) from time to time such other financial data and information (including accountants' management letters) as the Agent 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, MCRC or any other Guarantor or any such subsidiary;Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (New England Business Service Inc)
Financial Statements, Certificates and Information. The Borrower Company will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety ninety-five (9095) days after the end of each fiscal year of its fiscal yearsthe Company, unlessor Xxxxxxx Xxxxxxxxx, in as the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):may be:
(i) the consolidated balance sheet of the Company, as at the end of such fiscal year;
(ii) the consolidated statement of income and consolidated statement of cash flows of the Company for such fiscal year;
(iii) the balance sheet of Xxxxxxx Xxxxxxxxx, as at the end of such fiscal year ; and
(iv) the statement of income and statement of cash flows of Xxxxxxx Xxxxxxxxx for such fiscal year. Each of the balance sheets and statements delivered under this Section 6.2(a) shall (I) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP and its subsidiaries at the end of such year, the related audited consolidated statements of operations, owner's equity items (deficiti) and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC), the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting set forth in comparative form the figures for the previous fiscal year and all such statements to year; (II) be in reasonable detail, detail and prepared in accordance with GAAPGAAP based on the records and books of account maintained as provided in Section 6.1; (III) include footnotes or otherwise be accompanied by information outlining in sufficient detail reasonably satisfactory to the Administrative Agent the effect of consolidating Excluded Funds, if applicable, and be accompanied by (or be delivered concurrently with the financial statements under this Section 6.2(a)) a certification by the principal 44 financial or accounting officer of the Company or Xxxxxxx Xxxxxxxxx, as the case may be, that the information contained in such financial statements presents fairly in all material respects the consolidated financial position of the Company or the financial position of Xxxxxxx Xxxxxxxxx, as the case may be, on the date thereof and consolidated results of operations and consolidated cash flows of the Company or results of operations and cash flows Xxxxxxx Xxxxxxxxx, as the case may be, for the periods covered thereby; and (IV) be certified, without limitation as to scope, by PricewaterhouseCoopers LLP or another firm of independent certified public accountants reasonably satisfactory to the Administrative Agent, and, in each casethe case of items (i) and (ii), shall be accompanied by an auditor's report prepared without qualification by (or be delivered concurrently with the Accountantsfinancial statements under this Section 6.2(a)(i) and (ii)) a written statement from such accountants to the effect that in connection with their audit of such financial statements nothing has come to their attention that caused them to believe that the Company has failed to comply with the terms, covenants, provisions or conditions of Section 6.1, Section 7.1, Section 7.5(a), Section 7.5(c), Section 7.6, Section 7.7 and Section 8 of this Credit Agreement as to accounting matters (provided that such accountants may also state that the audit was not directed primarily toward obtaining knowledge of such noncompliance), or, if such accountants shall have obtained knowledge of any such noncompliance, they shall disclose in such statement any such noncompliance; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any such noncompliance;
(b) as soon as practicable, but in any event not later than forty-five fifty (4550) days after the end of each of its the first three (3) fiscal quarters:
quarters of each fiscal year of the Company, (i) in the case of MCRLP, if prepared, copies of the unaudited interim condensed consolidated balance sheet of MCRLP and its subsidiaries the Company as at the end of such fiscal quarter, and (ii) the related unaudited interim condensed consolidated statements statement of operations, owner's equity (deficit) income and unaudited interim condensed consolidated statement of cash flows flow of the Company for such fiscal quarter and for the portion of MCRLP's the Company’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and, with respect to clauses (i) and (ii), prepared in a manner consistent with the accounting practices and policies employed with respect to the audited financial statements reported in the Company’s most recent Form 10-K filed with the Securities and Exchange Commission and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form Rule 10-Q statements filed with 01 of Regulation S-X of the SECSecurities and Exchange Commission, together with and including footnotes or otherwise accompanied by information outlining in sufficient detail reasonably satisfactory to the Administrative Agent the effect of consolidating Excluded Funds, if applicable, and concurrently therewith a certification by the chief principal financial or accounting officer or vice president of finance the Company that, in the opinion of MCRLP or MCRCmanagement of the Company, as applicableall adjustments necessary for a fair presentation of (A) the results of operations of the Company for the periods covered thereby, that the information contained in such financial statements fairly presents (B) the financial position of MCRLP or MCRC (as the case may be) and its subsidiaries on Company at the date thereof thereof, and (C) the cash flows of the Company for periods covered thereby have been made (subject to year-end adjustments);
(c) concurrently with the delivery of the financial statements referred to in subsection (b) above, the quarterly FOCUS Report of Xxxxxxx Xxxxxxxxx;
(d) simultaneously with the delivery of the financial statements referred to in subsections (aa)(i) and (for the fourth fiscal quarter of each fiscal yearii) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial officer, treasurer or general counsel of the Company in substantially the form of EXHIBIT D Exhibit H hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 8 and Section 9 hereof(if applicable) reconciliations to reflect changes in GAAP since December 31, 2017;
(de) promptly after the same are available, copies of each annual report, proxy, if any, or financial statement or other report or communication sent to the holders of Equity Securities of the Company who are not Affiliates of the Company, and copies of all annual, interim and current 45 reports and any other report of a material nature (it being understood that filings in the ordinary course of business pursuant to Sections 13(d), (f) and (g) of the Securities Exchange Act of 1934 are not material) which the Company 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 Administrative Agent pursuant hereto; and
(f) from time to time such other financial data and information (including accountants’ management letters) as the Administrative Agent (having been requested to do so by any Bank) may reasonably request. Documents required to be delivered pursuant to this Section 6.2 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company’s internet website at xxx.xxxxxxxxxxxxxxxxx.xxx or such other replacement website of which the Company has given proper notice to the Administrative Agent and each Bank; or (ii) on which such documents are posted on the Company’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that the Company shall notify (which may be by facsimile or electronic mail) the Administrative Agent and each Bank of the posting of any such documents. The Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request for delivery, and each Bank shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Company hereby acknowledges that (a) the Administrative Agent will make available to the Banks materials and/or information provided by or on behalf of the Company hereunder (collectively, “Company Materials”) by posting the Company Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Banks (each, a copy of each report (including any so“Public Lender”) may have personnel who do not wish to receive material non-called letters of reportable conditions or letters of no material weakness) submitted public information with respect to the Borrower, MCRCCompany or its Affiliates, or any other Guarantor or the respective securities of any of their respective subsidiaries the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Company hereby agrees that (w) all Company Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Company Materials “PUBLIC,” the Accountants Company shall be deemed to have authorized the Administrative Agent and the Banks to treat such Company Materials as not containing any material non-public information with respect to the Company or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Company Materials constitute Information, they shall be treated as set forth in connection with each annual audit Section 20); (y) all Company Materials marked “PUBLIC” are permitted to be made available through a portion of the books Platform designated “Public Side Information;” and (z) the Administrative Agent shall be entitled to treat any Company Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the BorrowerPlatform not designated “Public Side Information.” Notwithstanding the foregoing, MCRC, or the Company shall be under no obligation to xxxx 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, MCRC or any other Guarantor or any such subsidiary;Company Materials “PUBLIC.”
Appears in 1 contract
Samples: Revolving Credit Agreement (Alliancebernstein Holding L.P.)
Financial Statements, Certificates and Information. The Borrower will deliver to the Administrative Agent (and the Administrative Agent will cause MCRC to promptly, after receipt thereof, deliver to the Administrative Agent:Lenders):
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal yearsthe Borrower, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, in each case, accompanied by an auditor's report prepared 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 AccountantsAdministrative Agent and (ii) a statement certified by the chief 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 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 forty-five (45) days after the end of each of its the first three (3) fiscal quarters:
quarters of each fiscal year of the Borrower, (i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLP's the Borrower’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief financial officer or vice president the treasurer of finance the Borrower that to the best of MCRLP or MCRCthe Borrower’s knowledge, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments)) and (ii) a Compliance Certificate as of such fiscal quarter end;
(c) simultaneously from time to time such other financial data and information as the Administrative Agent or any Lender may reasonably request;
(i) promptly upon becoming aware of the occurrence of any actual or 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 information with respect thereto as the Administrative Agent shall reasonably request; and
(e) 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 Borrower, 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 delivery Securities Exchange Commission under Section 13 or 15(d) of the financial statements referred Securities Exchange Act of 1934, and not otherwise required to in subsections (a) (for be delivered to the fourth fiscal quarter of each fiscal year) above and (b) (for Administrative Agent pursuant hereto. All Confidential Information concerning the first three fiscal quarters of each fiscal year), a statement in the form of EXHIBIT D hereto signed Borrower supplied by the chief financial officer or vice president 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 finance of the MCRLP or MCRC, as applicable, and this Credit Agreement. Documents required to be delivered pursuant to this §6.4 (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that any such changes documents are included in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance materials otherwise filed with the covenants contained 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; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender, 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 Section 8.7 and Section 9 hereof;
(d) promptly if requested writing that the Borrower deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent, a copy the Issuing Bank or such Lender and (ii) the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of each report (including the posting of any so-called letters of reportable conditions or letters of no material weakness) submitted such documents and provide to the BorrowerAdministrative Agent by electronic mail electronic versions (i.e., MCRCsoft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by §§6.4(a) and (b) 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 other Guarantor or any of their respective subsidiaries event shall have no responsibility to monitor compliance by the Accountants in connection Borrower with any such request for delivery, and each annual audit Lender and the Issuing Bank shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (i) the Administrative Agent and/or the Arranger will make available to the Lenders and the Issuing Bank materials and/or information provided by or on behalf of the books Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (ii) certain of the BorrowerLenders may be “public-side” Lenders (i.e., MCRCLenders 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 (A) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” by the Borrower which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (B) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the Issuing Bank and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or any other Guarantor or its securities for purposes of United States Federal and state securities laws (provided, however, (x) to the extent such subsidiary by Borrower Materials constitute Confidential Information, they shall be treated as set forth in §25 and (y) to the extent such Accountants or in connection with any interim audit thereof pertaining Borrower Materials are not marked “PUBLIC” and posted on the Platform, such Borrower Materials will also be subject to any phase the additional confidentiality provisions included on the Platform); (C) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the business Platform designated “Public Investor;” and (D) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the BorrowerPlatform not designated “Public Investor” and the Administrative Agent, MCRC or the Issuing Bank and the Lenders agree not to trade securities on the basis of any other Guarantor or Borrower Materials that are posted on the Platform and are not marked “PUBLIC.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any such subsidiary;Borrower Materials “PUBLIC.”
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower Loan Parties will deliver and will cause MCRC to deliver to the Administrative AgentLender:
(a) as soon as practicable, but in any event (i) not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedGuarantor, the audited consolidated balance sheet of MCRLP the Guarantor and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow for such year, each setting forth in comparative form the figures for the previous fiscal year and owner's equityall 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 the Guarantor or any of its Subsidiaries to continue as going concerns (other than any expression of uncertainty that is expressly solely with respect to, or expressly resulting solely from any potential inability to satisfy the financial covenant set forth in Section 6.08(a) with supplemental consolidating schedules provided of this Agreement on a future date or in a future period), by MCRLP; and
PricewaterhouseCoopers Ltd. or any other independent certified public accountant engaged pursuant to Section 5.03(c) and (ii) in not later than one hundred and twenty (120) days after the case end of MCRCeach fiscal year of the Company and the Master Fund, the audited consolidated balance sheet statement of MCRC assets and its subsidiaries (including, without limitation, MCRLP liabilities of each of the Company and its subsidiaries) the Master Fund as at the end of such year, and the related audited consolidated statements statement of operationsoperations for such year, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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, andand certified, in each case, accompanied by an auditor's report prepared without qualification by the Accountantsqualification;
(b) as soon as practicable, but in any event (i) not later than forty-five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedGuarantor, copies of the unaudited consolidated balance sheet of MCRLP the Guarantor and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLP's the Guarantor’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Guarantor that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Guarantor and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments); and (ii) not later than sixty (60) days after the end of each semiannual fiscal period of the Company and the Master Fund, copies of the unaudited statement of assets and liabilities of each of the Company and the Master Fund as at the end of such semiannual fiscal period and the related statement of operations for such semiannual fiscal period, all in reasonable detail and 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 position of each of the Company and the Master Fund on the date thereof (subject to year-end adjustments);
(c) Within thirty (30) days of receipt of any audit committee report prepared by such Loan Party’s accountants, if there are any reportable events resulting in any discussion in the sections of such report entitled “Errors or Irregularities”, “Illegal Acts” or “Misstatements Due to Fraud”, the Company will provide copies of such sections to the Lender;
(d) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) above, a Compliance Certificate;
(e) five days after the date filed with the relevant Governmental Authority for each of its fiscal years, but in any event within 125 days after the first three fiscal quarters end of each fiscal year), a statement in the form year of EXHIBIT D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by the Administrative Agentany Insurance Subsidiary, a copy of each report the annual financial statements required to be filed with the Minister of Finance of Bermuda or such other appropriate Governmental Authority of the jurisdiction of domicile of any Insurance Subsidiary;
(including any so-called letters f) contemporaneously with the filing or mailing thereof, copies of reportable conditions all material of a financial nature filed with the SEC or letters of no material weakness) submitted the London Stock Exchange or sent to the Borrowerstockholders of either Loan Party; and
(g) from time to time such other financial data and information as the Lender may reasonably request. Documents required to be delivered pursuant to Section 5.04(a), MCRC(b) or (f) (to the extent any such documents are included in materials otherwise filed with the SEC or the London Stock Exchange) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which such materials are publicly available as posted on the Electronic Data Gathering, Analysis and Retrieval system (XXXXX) or any other Guarantor the National Storage Mechanism of the London Stock Exchange; or any of their respective subsidiaries (ii) on which such documents are posted on a Loan Party’s behalf on an Internet or intranet website, if any, to which the Lender has access (whether a commercial or third-party website); provided that: (A) upon written request by the Accountants in connection with each annual audit Lender, the Company and the Guarantor shall deliver paper copies of such documents to the Lender until a written request to cease delivering paper copies is given by the Lender and (B) the Company and the Guarantor shall notify the Lender (by facsimile or electronic mail) of the books posting of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;documents and provide to Lender by electronic mail electronic versions (i.e., soft copies) of such documents.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver and will or cause MCRC to deliver be delivered to the Administrative AgentAgent with sufficient copies for each of the Lenders:
(a) as soon as practicablewithin five (5) days of the filing of Parent’s Form 10-K with the SEC, but in any event not later than within ninety (90) days after the end of each of its fiscal yearscalendar year, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited a consolidated balance sheet of MCRLP the Parent and its subsidiaries at Subsidiaries as of the end of such year, year and the related audited consolidated statements of operationsincome, owner's shareholders’ equity (deficit) and cash flows for the year then endedsuch year, setting forth in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year, all certified by Deloitte & Touche LLP or other independent public accountants of nationally recognized standing, with such certification to be free of exceptions and qualifications not acceptable to the Required Lenders and (ii) a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such year and the related consolidated statements of income, 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 Deloitte & Touche LLP or other independent public accountants of nationally recognized standing, with such statements certification to be in reasonable detail, prepared in accordance with GAAP, and, in each case, accompanied by an auditor's report prepared without qualification by free of exceptions and qualifications not acceptable to the AccountantsRequired Lenders;
(b) as soon as practicablewithin five (5) days of the filing of Parent’s Form 10-Q with the SEC, if applicable, but in any event not later than within forty-five (45) days after the end of each of its first three (3) fiscal quarters:
the four calendar quarters of each year, (i) in the case of MCRLP, if prepared, copies of the unaudited a consolidated balance sheet of MCRLP the Parent and its subsidiaries Subsidiaries as of the end of such quarter and the related statement of income and statement of cash flows for such quarter and for the portion of the year ended at the end of such quarter, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of the previous year, all certified (subject to normal year-end adjustments) as to fairness of presentation, GAAP and consistency by the chief financial officer of Parent and (ii) a consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such quarter and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and statement of cash flows for such quarter and for the portion of MCRLP's fiscal the year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as ended at the end of such quarter, setting forth in each case in comparative form the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows figures for the corresponding quarter and the corresponding portion of MCRC's fiscal year then elapsedthe previous year, with supplemental consolidating schedules all certified (except with respect subject to statements normal year-end adjustments) as to fairness of cash flow presentation, GAAP and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SEC, together with a certification consistency by the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) and its subsidiaries on the date thereof (subject to year-end adjustments)Borrower;
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT D hereto signed (a “Compliance Certificate”) certified by the chief financial officer or vice president chief accounting officer of finance Parent in the form of Exhibit C hereto (or in such other form as the 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;
(d) upon the request of the MCRLP Agent, copies of all financial statements, reports or MCRC, as applicable, proxy statements sent to the shareholders of Parent;
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) and (if applicableb) reconciliations to reflect changes in GAAP since above, a current WIP Schedule;
(f) upon the applicable Financial Statement Daterequest of the Agent, but only to copies of all registration statements (other than the extent that such changes in GAAP affect 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 financial covenants set forth in Section 9 hereof; andSEC provided that, in the case of MCRLPannual and quarterly reports on Forms 10-K and 10-Q, setting forth in reasonable detail computations evidencing compliance with respectively, such reports shall be deemed to be delivered hereunder if posted on the covenants contained in Section 8.7 and Section 9 hereof;Parent’s website; and
(dg) promptly if requested by from time to time such other financial data and information in the Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books possession of the Borrower, MCRCeach 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 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 Guarantor or such subsidiary by such Accountants or electronic information dissemination system, and the Borrower and Parent release Agent and the Lenders from any liability in connection with any interim audit thereof pertaining to any phase of the business of the Borrower, MCRC or any other Guarantor or any such subsidiary;therewith.
Appears in 1 contract
Samples: Senior Secured Term Loan Agreement (Cogdell Spencer Inc.)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Parent Companies, the Borrower and its subsidiaries their Subsidiaries and the consolidating balance sheet of the Parent Companies, the Borrower and their Subsidiaries, each as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case statement of MCRC, the audited consolidated balance sheet income and consolidating statement of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of cash flow for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, andand certified, in each case, accompanied by an auditor's report prepared without qualification and without an expression of uncertainty as to the ability of any of the Parent Companies, the Borrower or any of their Subsidiaries to continue as going concerns, by Ernst & Young LLP or by other independent certified public accountants reasonably satisfactory to the AccountantsAgent;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its the first three (3) fiscal quarters:
(i) quarters of the Borrower in the case of MCRLP, if preparedeach fiscal year, copies of the unaudited consolidated balance sheet of MCRLP the Parent Companies, the Borrower and its subsidiaries their Subsidiaries, as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLP's the Borrower’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustmentsadjustments and the exclusion of footnotes);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT Exhibit D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 §11 and Section 9 hereof(if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(d) promptly if requested contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed by Digitas with the Administrative AgentSecurities and Exchange Commission or sent to the stockholders of the Borrower;
(e) as soon as practicable, a copy but in any event not later than forty-five (45) days after the end of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to fiscal year, the Borrower’s annual budget for then current fiscal year;
(f) simultaneously with the receipt thereof, MCRCcopies of any accountants’ management letters received by any of the Parent Companies, or any other Guarantor the Borrower or any of their respective subsidiaries by Subsidiaries; and
(g) from time to time such other financial data and information (including updated projections) as the Accountants in connection with each annual audit of Agent may reasonably request or as the books of Borrower may provide to the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Agent.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to the Administrative Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal yearsthe Guarantor, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance commencing with the proviso to Section 7.4(g):
(i) in the case of MCRLPfiscal year ending May 31, if prepared2004, the audited consolidated balance sheet of MCRLP the Guarantor and the unaudited consolidated balance sheet of the Borrower and its subsidiaries Subsidiaries, each as at the end of such fiscal year, and the related audited consolidated statements of operations, owner's equity (deficit) income and cash flows flow for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such fiscal year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, andand with respect to such audited consolidated balance sheet and financial statements of the Guarantor, in each case, accompanied by an auditor's report prepared certified without qualification by independent certified public accountants reasonably satisfactory to the AccountantsAgent;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its the first three (3) fiscal quarters:
(i) quarters in each fiscal year of the case of MCRLPBorrower, if preparedcommencing with the fiscal quarter ending August 31, 2004, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries, each as at the end of such quarter, and the related unaudited consolidated statements of operations, owner's equity (deficit) income and cash flows flow for the portion of MCRLP's the Borrower’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief financial officer or vice president Chief Financial Officer of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents in accordance with GAAP the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(ci) simultaneously with the delivery of the financial statements referred to in subsections subsection (ab) above, and (for ii) as soon as practicable, but in any event not later than ninety (90) days after the fourth fiscal quarter end of each fiscal year) above and (b) (for year of the first three fiscal quarters of each fiscal year)Borrower, a statement certified by the Chief Financial Officer of the Borrower in substantially the form of EXHIBIT D Exhibit C hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 §10 and Section 9 hereof(if applicable) reconciliations to reflect changes in GAAP since April 30, 2004;
(d) promptly if requested at any time the Borrowing Base is in effect, as soon as practicable, but in any event not later than fifteen (15) days after the end of each month, a statement certified by the Administrative Agent, a copy Chief Financial Officer of each report the Borrower in substantially the form of Exhibit D hereto and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §2.11; and
(e) from time to time such other financial data and information regarding the financial and other affairs of the Borrower and its Subsidiaries (including any so-called letters of reportable conditions or letters of no material weaknessaccountants’ management letters) submitted to as the Borrower, MCRC, Agent or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Bank may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Weider Nutrition International Inc)
Financial Statements, Certificates and Information. The Borrower Borrowers --------- ---------- ------------ --- ----------- will deliver and will cause MCRC to deliver to each of the Administrative AgentLenders:
(a) as soon as practicable, but but, in any event not later than ninety (90) 90 days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrowers, the audited consolidated balance sheet of MCRLP and its subsidiaries the Borrowers as at the end of such year, statements of cash flows, and the related audited consolidated statements statement of operations, owner's equity (deficit) and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures amounts for the previous fiscal year and year, all such consolidated statements to be in reasonable detail, prepared in accordance with GAAP, and, in each case, accompanied by an auditor's report prepared and certified without qualification by KPMG Peat Marwick, L.L.P. or by other independent certified public accountants satisfactory to the Managing Agent (the "Accountants");
(b) as soon as practicable, but in any event not later than forty-five (45i) 45 days after the end of each of its the first three fiscal quarters of each fiscal year of the Borrowers, and (3ii) 90 days after the end of the last fiscal quarters:
(i) in the case quarter of MCRLP, if preparedeach fiscal year, copies of the unaudited consolidated and consolidating balance sheet and statement of MCRLP and its subsidiaries operations of the Borrowers as at the end of such quarter, the related unaudited subject to year end audit adjustments, and consolidated statements of operations, owner's equity (deficit) and cash flows for the portion of MCRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements statement of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRCflows, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Parent ("CFO") that the information contained in such financial statements have been prepared in accordance with GAAP, are complete and correct in all material respects, and fairly presents present the financial position condition of MCRLP or MCRC (the Borrowers as at the case may be) and its subsidiaries close of business on the date thereof (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 subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) above, (for the first three fiscal quarters of each fiscal year), i) a statement in the form of EXHIBIT D Exhibit C hereto signed (the "Compliance Certificate") certified by the chief financial officer or vice president of finance CFO that the Borrowers are in compliance with the covenants contained in (S)(S)7, 8, and 9 hereof as of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since end of the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, period and setting forth in reasonable detail computations evidencing compliance such compliance, provided that if the Borrowers shall at the time of issuance of such certificate 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 a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with respect thereto; (ii) a backlog report in the covenants contained form of Exhibit D hereto; and (iii) additional consolidating financial information in Section 8.7 and Section 9 hereofthe form of Exhibit E hereto;
(d) promptly if requested by with the Administrative Agentfiling or mailing thereof, a copy copies of each report (including any soall forms 8-called letters of reportable conditions K, 10-K, and 10-Q filed with the Securities and Exchange Commission or letters of no material weakness) submitted sent to the Borrowerstockholders of the Parent; and
(e) from time to time such other financial data and information, MCRC, including without limitation pro forma financial projections as any Agent or any other Guarantor 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 their respective subsidiaries 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 the Accountants in connection with each annual audit of the books of the Borrower, MCRC, any Agent or any other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase Lender of the business of the Borrower, MCRC or any other Guarantor or any such subsidiary;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 Revolving Credit Agreement (United States Filter Corp)
Financial Statements, Certificates and Information. The Borrower will deliver to the Administrative Agent (and the Administrative Agent will cause MCRC to promptly, after receipt thereof, deliver to the Administrative Agent:Lenders):
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal yearsyear (or, unlessif earlier, in within fifteen (15) days after the case of MCRC, MCRC has date required to be filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso Securities and Exchange Commission without giving effect to Section 7.4(g):
extensions) of the Borrower, (i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, in each case, accompanied by an auditor's report prepared 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 AccountantsAdministrative Agent and (ii) a statement certified by the chief financial officer or the treasurer of the Borrower in substantially the form of Exhibit B attached hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §8 hereof 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 forty-five (45) days after the end of each of its the first three fiscal quarters of each fiscal year (3or, if earlier, within ten (10) fiscal quarters:
days after the date required to be filed with the Securities and Exchange Commission without giving effect to extensions) of the Borrower, (i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLP's the Borrower’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief financial officer or vice president the treasurer of finance the Borrower 47438543.7 that to the best of MCRLP or MCRCthe Borrower’s knowledge, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments)) and (ii) a Compliance Certificate as of such fiscal quarter end;
(c) simultaneously from time to time such other financial data and information as the Administrative Agent or any Lender may reasonably request;
(i) promptly upon becoming aware of the occurrence of any actual or claimed Event of Termination under any Material Securitization Transaction the result of which would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require the repurchase of the receivables sold thereunder, notice thereof, which notice shall describe such Event of Termination and indicate what steps the Borrower and its Subsidiaries are taking to remedy the same and (ii) promptly upon request therefor, such other information with respect thereto as the Administrative Agent shall reasonably request; and
(e) 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 Borrower, 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 delivery Securities Exchange Commission under Section 13 or 15(d) of the financial statements 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; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender, each 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, any 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, such 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 documents. The Administrative Agent shall have no obligation to request the delivery or to maintain paper copies of the documents referred to above, and in subsections any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender 47438543.7 and each Issuing Bank shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (ai) the Administrative Agent and/or the Co-Lead Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (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”); provided, however, that each Public Lender shall identify at least one employee who may receive material non-public information with respect to the Borrower or its securities. The Borrower hereby agrees that (A) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” by the Borrower which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (B) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Co-Lead Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, (x) to the fourth fiscal quarter of each fiscal year) above extent such Borrower Materials constitute Confidential Information, they shall be treated as set forth in §25 and (by) to the extent such Borrower Materials are not marked “PUBLIC” and posted on the Platform, such Borrower Materials will also be subject to the additional confidentiality provisions included on the Platform); (for the first three fiscal quarters of each fiscal year), C) all Borrower Materials marked “PUBLIC” are permitted to be made available through a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance portion of the MCRLP or MCRC, as applicable, Platform designated “Public Investor;” and (if applicableD) reconciliations the Administrative Agent and the Co-Lead Arrangers shall be entitled to reflect changes 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” and the Administrative Agent, the Issuing Banks and the Lenders agree not to trade securities on the basis of any Borrower Materials that are posted on the Platform and are not marked “PUBLIC.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC.” THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender, any Issuing Bank or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in GAAP since tort, contract or otherwise) arising out of the applicable Financial Statement DateBorrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, but only except to the extent that such changes losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross 47438543.7 negligence or willful misconduct of such Agent Party; provided, however, that in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by the Administrative Agent, a copy of each report (including no event shall any so-called letters of reportable conditions or letters of no material weakness) submitted Agent Party have any liability to the Borrower, MCRCany Lender, any Issuing Bank or any other Guarantor Person for indirect, special, incidental, consequential or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, punitive damages (as opposed to direct 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, MCRC or any other Guarantor or any such subsidiary;actual damages).
Appears in 1 contract
Samples: Credit Agreement (Staples Inc)
Financial Statements, Certificates and Information. The Borrowers will deliver to each of the Lenders (other than the items described in clause (f) of this Section 8.4, which the Borrower will deliver and will cause MCRC to deliver to the Administrative Agent:Agent and which the Administrative will, upon the request of any Lender, deliver to such Lender):
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedParent, the audited consolidated and consolidating balance sheet of MCRLP Parent and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements and consolidating statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, andand certified (with respect to the consolidated statements), in each case, accompanied by an auditor's report prepared without qualification and without an expression of uncertainty as to the ability of Parent or any of its Subsidiaries to continue as going concerns, by BDO Sxxxxxx, LLP and/or by other independent certified public accountants satisfactory to the AccountantsAdministrative Agent, together with (i) an audit report of such accountants stating that such consolidated financial statements fairly present in all material respects the consolidated financial condition and results of operations of Parent and its Subsidiaries as at the end of, and for, such fiscal year in accordance with GAAP and (ii) a copy of their accountants’ management letter for such fiscal year;
(bi) with respect to each of the first three Fiscal Quarters of each fiscal year of the Parent during which the Excess Availability Percentage is equal to or greater than 30% at all times, as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) fiscal quarters:
(i) in the case of MCRLP, if preparedsuch Fiscal Quarter, copies of the unaudited consolidated and consolidating balance sheet of MCRLP Parent and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements and consolidating statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLP's Parent’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) together with, in the case of MCRCthe consolidated statements, copies of the unaudited consolidated balance sheet of MCRC comparisons to corresponding quarterly and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows year-to-date periods for the portion of MCRC's fiscal year then elapsedprevious year, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, Parent that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC Parent and its Subsidiaries on the date thereof (as the case may besubject to year-end adjustments) and (ii) with respect to each of the first eleven (11) months of each fiscal year of the Parent during which the Excess Availability Percentage is less than 30% at any time, as soon as practicable, but in any event not later than thirty (30) days after the end of each such month, copies of the unaudited consolidated and consolidating balance sheet of Parent and its subsidiaries Subsidiaries as at the end of such month, and the related consolidated and consolidating statement of income and consolidated statement of cash flow for the portion of 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 Parent that the information contained in such financial statements fairly presents the financial position of Parent and its Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year), a statement certified by the principal financial or accounting officer of Parent in substantially the form of EXHIBIT Exhibit D hereto signed by (a “Compliance Certificate”) setting forth in reasonable detail computations evidencing the chief financial officer or vice president of finance of the MCRLP or MCRCFixed Charge Coverage Ratio and, as if applicable, with respect to the financial periods for which the Parent is required to maintain minimum EBITDA under §10.1 in accordance with the terms thereof, computations evidencing compliance with the covenant contained in §10.1 and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Balance Sheet Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if contemporaneously with the filing or mailing thereof, copies of all documents of a financial nature (or including any financial information) filed with the Securities and Exchange Commission or sent to the stockholders of Parent;
(e) within twenty (20) days after the end of each fiscal 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 fiscal month or other date so requested by the Administrative Agent and (ii) a listing of all locations where inventory of Signature Fruit is located and the value of the inventory located thereon, in form and detail satisfactory to the Administrative Agent, a copy ; provided that the Borrowing Base Report will be delivered weekly setting forth the Borrowing Base as at the end of each report calendar week within five (including 5) days after the ending of each week during which the Excess Availability Percentage is less than 30% at any so-called letters of reportable conditions or letters of no material weaknesstime (it being understood that such weekly Borrowing Base Reports shall reflect changes in Accounts Receivable and that changes in inventory and ineligible Accounts Receivable and inventory will continue to be updated on a monthly basis);
(f) submitted to the Borrower, MCRC, or contemporaneously with any other Guarantor or any of their respective subsidiaries by the Accountants delivery made in connection with clause (e) of this §8.4, an Accounts Receivable aging report, an accounts payable aging report and an inventory summary;
(g) as soon as available and in any event prior to the beginning of each annual audit fiscal year of Parent, (i) statements of forecasted consolidated income and cash flows for Parent and its Subsidiaries for each fiscal month in the next fiscal year and a forecasted consolidated balance sheet of Parent and its Subsidiaries as of the books last day of each fiscal month in such next fiscal year, and a comparison of the Borrowerprojected Excess Availability as of the last day of each fiscal month in such next fiscal year, MCRCand (ii) statements of forecasted consolidated income and cash flows for Parent and its Subsidiaries for the following fiscal year and a forecasted consolidated balance sheet of Parent and its Subsidiaries as of the last day of the following fiscal year, or and a comparison of the projected Excess Availability as of the last day of the following fiscal year, together (in the case of clauses (i) and (ii)) with supporting assumptions which were reasonable when made, all prepared in good faith in reasonable detail and consistent with Parent’s past practices in preparing projections and otherwise reasonably satisfactory in scope to the Administrative Agent;
(h) promptly after submission to any other Guarantor or Governmental Authority, all material documents and information furnished to such subsidiary by such Accountants or Governmental Authority in connection with any interim audit thereof pertaining to investigation of any phase of the business of the Borrower, MCRC Borrower or any Subsidiary of a Borrower other Guarantor than routine inquiries by such Governmental Authority and except as prohibited by law;
(i) by November 30 of each year, an off-season reserve analysis for the remainder of such fiscal year ending on March 31, in form and detail consistent with past practices and satisfactory to the Administrative Agent; and
(j) from time to time such other financial data and information as the Administrative Agent or any such subsidiary;Lender may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Seneca Foods Corp /Ny/)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared and certified without qualification by KPMG Peat Marwick 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 forty-five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);; 55
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit E hereto signed by (the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, "Compliance Certificate") and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 ss.11 and Section 9 hereof(if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(d) promptly if contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Borrower;
(e) within thirty (30) days after the end of each calendar month ending on or prior to July 31, 1998 and fifteen (15) days after the end of each calendar month ending thereafter or at such earlier time as the Agent may reasonably request, a Borrowing Base Report setting for the Borrowing Base as at the end of such calendar month or such other date so requested by the Administrative Agent;
(f) within thirty (30) days after the end of each calendar month ending on or prior to July 31, 1998 and fifteen (15) days after the end of each calendar month ending thereafter, an Accounts Receivable aging report;
(g) as soon as practicable, but in any event not later than thirty (30) days prior to the end of each fiscal year, the budget of the Borrower for the next fiscal year, and from time to time upon the reasonable request of the Agent, a copy projections of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted the Borrower and its Subsidiaries updating those projections delivered to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants Banks and referred to in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;ss.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Western Digital Corp)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries, as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPgenerally accepted accounting principles, andand certified without qualification (other than a qualification regarding changes in generally accepted accounting principles) by Ernst & Young 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 examined the relevant sections of this Credit Agreement, and that, in each casemaking the examination necessary to said certification, accompanied by an auditor's report prepared without qualification by they have obtained no knowledge of any Default or Event of Default under §§8 or 9 of this Credit Agreement, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default under any of such sections they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the AccountantsBanks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than forty-five seven (4547) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for such fiscal quarter and for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) each setting forth in comparative form the figures for the comparable periods in the case of MCRCprevious fiscal year (where applicable), copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of all such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all be in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by a principal financial or accounting officer of the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by a principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D ExhibitC hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 §9 and Section 9 hereof(if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(d) promptly if requested by contemporaneously with the Administrative Agentfiling or mailing thereof, copies of all material of a copy of each report (including any so-called letters of reportable conditions financial nature filed with the Securities and Exchange Commission or letters of no material weakness) submitted sent to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books stockholders of the Borrower;
(e) not later than May 1 of each year, MCRC(i) a budget for the fiscal year of the Borrower and (ii) projections of the Borrower and its Subsidiaries updating those projections delivered to the Banks and referred to in §6.4.3 or, if applicable, updating any later such projections delivered pursuant to this §7.4(e); and
(f) from time to time such other financial data and information (including an annual accountants' management letter) as the Agent 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, MCRC or any other Guarantor or any such subsidiary;Bank may reasonably request.
Appears in 1 contract
Samples: Multicurrency Revolving Credit Agreement (Rogers Corp)
Financial Statements, Certificates and Information. The Borrower will deliver to the Agent (and the Agent will cause MCRC to promptly, after receipt thereof, deliver to the Administrative Agent:Banks):
(a) as soon as practicable, but in any event not later than ninety one hundred ten (90110) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared and certified without qualification by Ernst & Young or by other independent certified public accountants reasonably satisfactory to the AccountantsAgent;
(b) as soon as practicable, but in any event not later than fortysixty-five (4565) days after the end of each of its the first three (3) fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief financial officer or vice president the treasurer of finance the Borrower that to the best of MCRLP or MCRCthe Borrower's knowledge, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT D hereto signed certified by the chief financial officer or vice president of finance the treasurer of the MCRLP or MCRC, as applicable, Borrower in substantially the form of EXHIBIT C attached hereto (a "COMPLIANCE CERTIFICATE") and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 7 hereof and Section 9 hereof(if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(d) from time to time such other financial data and information as the Agent or any Bank may reasonably request; and
(i) promptly if requested upon becoming aware of the occurrence of any actual or claimed "EVENT OF TERMINATION" under and as defined in any of the documents relating to the Securitization, notice thereof, which notice shall describe such Event of Termination and indicate what steps the Borrower and its Subsidiaries are taking to remedy the same and (ii) promptly upon request therefor, such other information with respect to the Securitization as the Agent shall reasonably request. All Confidential Information concerning the Borrower supplied by the Administrative AgentBorrower to the Banks pursuant to the terms hereof will be held in confidence by the Banks and the Banks shall not disclose such Confidential Information except that the Borrower authorizes each Bank to disclose any Confidential Information obtained pursuant to this Credit Agreement or any other Loan Document (i) to any bank regulatory authority, (ii) to any independent auditor or counsel or participant or potential assignee or potential participant of such Bank, provided that such independent auditor or counsel or participant or potential assignee or potential participant enters into a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted confidentiality agreement with the Borrower substantially similar to such Bank's agreement with the Borrower, MCRC, or any and (iii) to all other Guarantor or any of their respective subsidiaries by appropriate governmental -24- regulatory authorities to the Accountants in connection with each annual audit of the books of the Borrower, MCRC, or any other Guarantor or such subsidiary extent required by such Accountants Bank by law or in connection with any interim audit thereof pertaining subpoena, but only to any phase of the business of the Borrowerextent permitted by applicable laws and regulations, MCRC or any other Guarantor or any such subsidiary;including those applying to classified material.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet sheets of MCRLP the Borrower and its subsidiaries of the Company at the end of such year, and the related audited consolidated statements of operations, owner's equity (deficit) operations and cash flows for the year then ended, in each case (except for statements of cash flow flows and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC Funds From Operations and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of taxable income for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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 GAAPgenerally accepted accounting principles on a consolidated basis including the Borrower and the Related Companies, and, in each case, 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 AccountantsAgent;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its the first three (3) fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet sheets of MCRLP the Borrower and its subsidiaries of the Company as at the end of such quarter, and the related unaudited consolidated statements of operations, owner's equity (deficit) operations and cash flows statements of Funds From Operations and estimated taxable income for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Company that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries of the Company on the date thereof (subject to year-end adjustments); provided, however, that for so long as the Borrower and the Company are filing form 10-Q with the SEC, the delivery of a 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 the fiscal quarters of the Borrower, copies of a statement of the Net Operating Income for such fiscal quarter for the Unencumbered Properties, 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 the Agent, a consolidating 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 subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT D Exhibit C hereto signed by the chief financial officer or vice president of finance a Responsible Officer of the MCRLP or MCRC, as applicable, Company and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained herein and (if applicable) reconciliations to reflect changes in Section 8.7 and Section 9 hereofgenerally accepted accounting principles since the Balance Sheet Date;
(de) as soon as practicable, 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 the Agent simultaneously with the filing thereof with the SEC;
(f) promptly if requested by following the Administrative Agentfiling or mailing thereof, copies of all other material of a copy of each report (including any so-called letters of reportable conditions financial nature filed with the SEC or letters of no material weakness) submitted sent to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit shareholders of the books Company or to the limited partners of the Borrower, MCRC, or any Borrower and copies of all corporate press releases promptly upon the issuance thereof;
(g) from time to time such other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase of financial data and information as the business of the Borrower, MCRC or any other Guarantor or any such subsidiaryAgent may reasonably request;
Appears in 1 contract
Samples: Term Loan Agreement (Liberty Property Limited Partnership)
Financial Statements, Certificates and Information. The Borrower Borrowers will deliver and will cause MCRC to deliver to the Administrative AgentBank:
(a) as soon as practicable, but in any event not later than ninety the earlier of (90i) five (5) days after filing the same with the Securities and Exchange Commission or (ii) one hundred twenty (120) days after the end of each fiscal year of Xxxxxx US, Xxxxxx US shall (x) post on its fiscal years, unless, in website the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP Xxxxxx US and its subsidiaries Subsidiaries, as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared and certified without qualification (other than a qualification regarding changes in generally accepted accounting principles) by Ernst & Young LLP or by other independent certified public accountants satisfactory to the AccountantsBank, and (y) notify the Bank that Xxxxxx US has posted such information on its website;
(b) as soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of each of its first three (3) the fiscal quarters:
(i) in the case quarters of MCRLP, if preparedXxxxxx US, copies of the unaudited consolidated balance sheet of MCRLP Xxxxxx US and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for such fiscal quarter and for the portion of MCRLPXxxxxx US's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) each setting forth in comparative form the figures for the comparable periods in the case of MCRCprevious fiscal year (where applicable), copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of all such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all be in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief a principal financial accounting officer or vice president of finance of MCRLP or MCRC, as applicable, Xxxxxx US that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Xxxxxx US and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by a principal financial or accounting officer of Xxxxxx US in substantially the form of EXHIBIT D Exhibit C hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicablea "Compliance Certificate") reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 §9 and Section 9 hereof(if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(d) promptly if requested by contemporaneously with the Administrative Agentfiling or mailing thereof, copies of all material of a copy financial nature filed with the Securities and Exchange Commission or sent to the stockholders of Xxxxxx US;
(e) not later than May 1 of each report year, (i) a budget for the fiscal year of Xxxxxx US and (ii) projections of Xxxxxx US and its Subsidiaries for the current fiscal year and the two (2) subsequent fiscal years, updating those projections delivered to the Bank and referred to in §6.4.3 or, if applicable, updating any later such projections delivered pursuant to this §7.4(e); and
(f) from time to time such other financial data and information (including any so-called letters of reportable conditions or letters of no material weaknessa standard annual accountants' management letter) submitted to as the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Bank may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver Furnish to the Administrative Agent:
(a) The Quarterly Reports on Form 10-Q for the Parent Guarantor and its Consolidated Subsidiaries for the quarters ended June 30, 2004 and September 30, 2004 in each case, by not later than December 31, 2004;
(b) Commencing with the fiscal year ending December 31, 2004, as soon as practicablepracticable and, but in any event not later than ninety event, within one hundred twenty (90120) days after the end of each subsequent fiscal year (or, with respect to CAI, upon the request of its fiscal yearsthe Agent, unless, in but only so long as CAI is subservicer of any of the case Containers) of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case each of MCRLP, if preparedCAI, the audited Parent Guarantor and the Borrower, consolidated balance sheet sheets of MCRLP each of CAI, the Parent Guarantor, the Borrower and its subsidiaries their Subsidiaries, as at the end of such fiscal year, the related audited and consolidated statements of operationsincome, owner's equity (deficit) and cash flows and retained earnings of each of CAI, the Parent Guarantor, the Borrower and its Subsidiaries for the fiscal year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year and year, all such statements to be in reasonable detail, prepared in accordance with generally accepted accounting principles consistently applied, accompanied by, in the case of CAI and the Parent Guarantor, a report and opinion of KPMG LLP (or such other independent certified public accountants of nationally recognized standing as are reasonably acceptable to the Lenders), which report and opinion shall have been prepared in accordance with generally accepted auditing standards and shall be unqualified as to "going concern" status, scope of audit or conformity with GAAP;
(c) Commencing with the fiscal year ending December 31, 2004, as soon as practicable and, in each caseany event, accompanied by an auditor's report prepared without qualification by the Accountants;
within sixty (b) as soon as practicable, but in any event not later than forty-five (4560) days after the end of each of its the first three fiscal quarters in each fiscal year (3) fiscal quarters:
(i) in or, with respect to CAI, upon the case of MCRLP, if prepared, copies request of the unaudited Agent, but only so long as CAI is subservicer of any of the Containers) of CAI, the Parent Guarantor and the Borrower consolidated balance sheet sheets of MCRLP CAI, the Parent Guarantor, the Borrower and its subsidiaries their Subsidiaries as at the end of such fiscal quarter, the related unaudited and consolidated statements of operationsincome and reconciliation of surplus of CAI, owner's equity (deficit) the Parent Guarantor, the Borrower and cash flows their Subsidiaries for the portion of MCRLP's the fiscal year then elapsedended, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and detail, prepared in accordance with GAAP on generally accepted accounting principles consistently applied, except for the same basis as used in preparation lack of MCRC's Form 10-Q statements filed with the SECfootnotes thereto, together with a certification and certified by the chief principal financial or principal accounting officer of CAI, the Parent Guarantor or vice president of finance of MCRLP or MCRCthe Borrower, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) and its subsidiaries on the date thereof (, but subject to normal, recurring year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year), a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by Concurrently with the Administrative Agentdelivery of each financial statement pursuant to paragraphs (a), (b) and (c) of this Section 6.4, a copy certificate substantially in the form of each report Exhibit H (including any so-called a Compliance Certificate), signed on behalf of the Borrower by its principal financial or principal accounting officer;
(e) Promptly upon receipt thereof, copies of all management letters of reportable conditions or letters substance and other reports of no material weakness) substance which are submitted to the Borrower, MCRC, Borrower or any other the Parent Guarantor or any of by their respective subsidiaries by the Accountants accountants in connection with each any annual or interim audit of the books of the BorrowerBorrower or the Parent Guarantor made by such accountants;
(f) Promptly upon their becoming available, MCRCcopies of such other financial statements and reports, if any, as the Borrower and/or the Parent Guarantor may be required to publicly file with the Securities and Exchange Commission or any similar or corresponding governmental commission, department or agency substituted therefor, or any other similar or corresponding governmental commission, department, board, bureau, or agency, federal or state;
(g) If and when the Borrower and/or the Parent Guarantor gives or such subsidiary by such Accountants or is required to give notice to the PBGC of any "Reportable Event" (as defined in connection Section 4043 of ERISA) with any interim audit thereof pertaining respect to any phase Plan that might constitute grounds for a termination of such Plan under Title IV of ERISA, or knows that any member of the business Controlled Group or the plan administrator of any Plan has given or is required to give notice of any such Reportable Event, a copy of the Borrowernotice of such Reportable Event given or required to be given to the PBGC;
(h) Immediately upon becoming aware of the existence of any condition or event that constitutes a Default or a Servicer Default, MCRC written notice thereof specifying the nature and duration thereof and the action being or proposed to be taken with respect thereto; and
(i) With reasonable promptness, such other data as the Agent or any other Guarantor or any such subsidiary;of the Lenders may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Interpool Inc)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety one hundred (90100) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries and the consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case statement of MCRC, the audited consolidated balance sheet income and consolidating statement of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of cash flow for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared the consolidated statements certified without qualification by Deloitte & Touche or by other independent certified public accountants satisfactory to the AccountantsAgent;
(b) as soon as practicable, but in any event not later than forty-five forty- eight (4548) days after the end of each of its the first three (3) fiscal quarters:
(i) in quarters of the case fiscal year of MCRLP, if preparedthe Borrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries and the unaudited consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow and consolidating statement of income and consolidating statement of cash flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D hereto signed by and setting forth in reasonable detail computations evidencing compliance with the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, applicable covenants contained in Section 9 and (if applicable) reconciliations to reflect changes in GAAP generally accepted accounting principles since the applicable Financial Statement Balance Sheet Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Borrower;
(e) within three Business Days (3) after the end of each week, a Borrowing Base Report setting forth the Borrowing Base as at the end of such week;
(f) within fifteen (15) days after the end of each calendar month, an Accounts Receivable aging report;
(g) 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 6.4.2 or, if requested applicable, updating any later such projections delivered in response to a request pursuant to this Section 7.4(g);
(h) within 5 days of receipt of the same by the Administrative Agent, a copy Borrower copies of each report (including i) the monthly status reports under the Funding Indenture and (ii) monthly settlement reports under the Bravo Facility Documents and from time to time if the Agent or any so-called letters Bank so requests copies of reportable conditions (i) other reports delivered under the Funding Indenture or letters of no material weaknessthe Bravo Facility Documents and (ii) submitted other financial data and information with respect to the Borrower, MCRC, or any other Guarantor Borrower or any of their respective subsidiaries by its Subsidiaries;
(i) simultaneously with the Accountants in connection with each annual audit delivery of the books financial statements referred to in subsections (a) and (b) above, an updated SCHEDULE 6.22 setting forth all Vehicle Leases if such Schedule has changed since it was last delivered to the Banks;
(j) within fifteen (15) days after the end of each calendar month or at such earlier time as the Agent may request, the monthly management report for ACFC;
(k) as soon as practicable, but in any event not later than one hundred (100) days after the end of each fiscal year of ACFC, copies of any reports prepared by management with respect to the financial conditions and results of operation of ACFC;
(l) as soon as practicable, but in any event not later than forty- eight (48) days after the end of each of the Borrower, MCRC, or any other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase first three fiscal quarters of the business fiscal year of ACFC, copies of any reports prepared by management with respect to the financial condition and results of operation of ACFC; and
(m) from time to time, such other information regarding the financial condition and results of operation of the Borrower, MCRC Borrower or ACFC as any other Guarantor of the Banks or any such subsidiary;the Agent shall reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to the Administrative AgentLender:
(a) as soon as practicablepractical, but in any event not later than ninety one hundred-ten (90110) days after the end of each fiscal year of its fiscal yearsBCLP, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited consolidated a balance sheet of MCRLP and its subsidiaries BCLP, as at the end of such year, the related audited consolidated year and statements of operationsincome, owner's equity (deficit) changes in partners' capital and changes in cash flows for the year then endedsuch year, setting forth in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures related amounts at the corresponding date or for the previous corresponding period of the preceding fiscal year and all year. Such financial statements will be consolidated to the extent that consolidated financial statements are required by generally accepted accounting principles and, if consolidated, will be accompanied by consolidating financial statements for the current year. All such annual financial statements will be reported upon by an independent certified public accountant of recognized national standing acceptable to be in reasonable detail, prepared the Lender (Ernst & Young hereby being deemed acceptable to the Lender) expressing an opinion without modification regarding the fairness of presentation of such financial statements in accordance with GAAP, and, in each case, accompanied by an auditor's report prepared without qualification by the Accountantsgenerally accepted accounting principles;
(b) as soon as practicablepractical, but in any event not later than fortyone hundred-five ten (45110) days after the end of each of its first three (3) fiscal quarters:
(i) in the case of MCRLP, if prepared, copies year of the unaudited consolidated Borrower, a balance sheet of MCRLP and its subsidiaries the Borrower, as at the end of such quarter, the related unaudited consolidated year and statements of operationsincome, owner's equity (deficit) changes in partners' capital and changes in cash flows for such year, setting forth in each case in comparative form the portion related amounts at the corresponding date or for the corresponding period of MCRLP's the preceding fiscal year. Such financial statements will be consolidated to the extent that consolidated financial statements are required by generally accepted accounting principles and, if consolidated will be accompanied by consolidating financial statements for the current year. All such annual financial statements will be reported upon by an independent certified public accountant of recognized national standing acceptable to the Lender (Ernst & Young hereby being deemed acceptable to the Lender) expressing an opinion without modification regarding the fairness of presentation of such financial statements in accordance with generally accepted accounting principles, and a statement that in connection with their audit they reviewed any consolidating financial statements and that such consolidating financial statements are presented fairly in relation to the related consolidated financial statements taken as a whole, such statements to be without modification except for accounting changes with which such accountants concur, together with a statement that their examination included a review of this Agreement and that based upon their review nothing has come to their attention that has caused them to believe that the Borrower was not in compliance with any of the provisions of this Agreement insofar as they relate to accounting matters and are based on balances as of the close of such fiscal year or for the year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; andended;
(iic) as soon as practical, but in any event not later than seventy-five (75) days after the case end of MCRC, copies each fiscal quarter of the Borrower, unaudited consolidated balance sheet sheets of MCRC and its subsidiaries (includingBCLP, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related quarter and unaudited consolidated statements of operationsincome, stockholderschanges in partners' equity (deficit) capital and changes in cash flows for such quarter and the portion of MCRC's fiscal year then elapsedto date, with supplemental setting forth in each case in comparative form the related amounts at the corresponding date or for the corresponding period of the preceding year. Such financial statements will be consolidated to the extent that consolidated financial statements are required by generally accepted accounting principles and, if consolidated, will be accompanied by consolidating schedules (except with respect to financial statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and for the current quarter. All such quarterly financial statements will be prepared in accordance with GAAP on the same basis as used generally accepted accounting principles except that only those footnotes customarily presented in preparation of MCRC's Form 10-Q interim financial statements filed with the SECwill be presented, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRCBorrower and BCLP that such interim financial statements, as applicableother than any consolidating financial statements, that the information contained in such financial statements present fairly presents the financial position of MCRLP or MCRC (as the case may be) and its subsidiaries on the date thereof (subject to year-year end adjustments);
(c) simultaneously the financial position, results of operations, changes in partners' capital and cash flows at such date or for such periods and that any consolidating financial statements are presented fairly in relation to the related consolidated financial statements taken as a whole. Concurrently with the delivery of such financial statements, the financial statements referred Borrower will also certify that nothing has come to its attention that has caused it to believe that the Borrower was not in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year), a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance compliance with any of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case provisions of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereofthis Agreement;
(d) promptly if requested by contemporaneously with the Administrative Agentfiling or mailing thereof, copies of all material of a copy financial nature which includes, as a separate company basis or in consolidation, the financial statements of each report the Borrower filed with the Securities and Exchange Commission or sent to the Unitholders of BCLP;
(e) from time to time such other financial data and information with respect to the Borrower (including any so-called letters of reportable conditions or letters of no material weaknessaccountants' management letters) submitted to as the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Lender may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Boston Celtics Limited Partnership)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries and the consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case statement of MCRC, the audited consolidated balance sheet income and consolidating statement of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of cash flow for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared and certified without qualification by the Accountantsnationally recognized independent certified public accountants;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries and the unaudited consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow and consolidating statement of income and consolidating statement of cash flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents in all 45 -38- material respects the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year), a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by the Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;
Appears in 1 contract
Samples: Revolving Credit Agreement (Freedom Securiteis Corp /De/)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries, as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPgenerally accepted accounting principles, andand certified without qualification (other than a qualification regarding changes in generally accepted accounting principles) by Ernst & Young 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 examined the relevant sections of this Credit Agreement, and that, in each casemaking the examination necessary to said certification, accompanied by an auditor's report prepared without qualification by they have obtained no knowledge of any Default or Event of Default under Sections 8 or 9 of this Credit Agreement, or, if such accountants shall have obtained knowledge of any then existing Default or Event of Default under any of such sections they shall disclose in such statement any such Default or Event of Default; provided that such accountants shall not be liable to the AccountantsBanks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than forty-five seven (4547) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for such fiscal quarter and for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) each setting forth in comparative form the figures for the comparable periods in the case of MCRCprevious fiscal year (where applicable), copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of all such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all be in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by a principal financial or accounting officer of the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by a principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit C hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 9 and Section 9 hereof(if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(d) promptly if requested by contemporaneously with the Administrative Agentfiling or mailing thereof, copies of all material of a copy of each report (including any so-called letters of reportable conditions financial nature filed with the Securities and Exchange Commission or letters of no material weakness) submitted sent to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books stockholders of the Borrower;
(e) not later than May 1 of each year, MCRC(i) a budget for the fiscal year of the Borrower and (ii) projections of the Borrower and its Subsidiaries updating those projections delivered to the Banks and referred to in Section 6.4.3 or, if applicable, updating any later such projections delivered pursuant to this Section 7.4(e); and
(f) from time to time such other financial data and information (including an annual accountants' management letter) as the Agent 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, MCRC or any other Guarantor or any such subsidiary;Bank may reasonably request.
Appears in 1 contract
Samples: Multicurrency Revolving Credit Agreement (Rogers Corp)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentLenders:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRCflow, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, andand certified, in each case, accompanied by an auditor's report prepared 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 Ernst & Young LLP or by other independent certified public accountants reasonably satisfactory to the AccountantsAdministrative Agent;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D C hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, (a "COMPLIANCE CERTIFICATE") and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 10 and Section 9 hereof(if applicable) reconciliations to reflect changes in GAAP since the Balance Sheet Date;
(d) promptly if requested by contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Borrower;
(e) from time to time upon request of the Administrative Agent, a copy projections of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted the Borrower and its Subsidiaries updating those projections delivered to the BorrowerLenders and referred to in Section 7.4.3 or, MCRCif 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 as the Administrative Agent or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Lender may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver to the Administrative Agent (and the Administrative Agent will cause MCRC to promptly, after receipt thereof, deliver to the Administrative Agent:Lenders):
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal yearsyear (or, unlessif earlier, in within fifteen (15) days after the case of MCRC, MCRC has date required to be filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso Securities and Exchange Commission without giving effect to Section 7.4(g):
extensions) of the Borrower, (i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, in each case, accompanied by an auditor's report prepared 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 AccountantsAdministrative Agent and (ii) a statement certified by the chief financial officer or the treasurer of the Borrower in substantially the form of Exhibit C attached hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §8 hereof 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 forty-five (45) days after the end of each of its the first three fiscal quarters of each fiscal year (3or, if earlier, within ten (10) fiscal quarters:
days after the date required to be filed with the Securities and Exchange Commission without giving effect to extensions) of the Borrower, (i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLP's the Borrower’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief financial officer or vice president the treasurer of finance the Borrower that to the best of MCRLP or MCRCthe Borrower’s knowledge, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments)) and (ii) a Compliance Certificate as of such fiscal quarter end;
(c) simultaneously from time to time such other financial data and information as the Administrative Agent or any Lender may reasonably request;
(i) promptly upon becoming aware of the occurrence of any actual or claimed Event of Termination under any Material Securitization Transaction the result of which would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require the repurchase of the receivables sold thereunder, notice thereof, which notice shall describe such Event of Termination and indicate what steps the Borrower and its Subsidiaries are taking to remedy the same and (ii) promptly upon request therefor, such other information with respect thereto as the Administrative Agent shall reasonably request; and
(e) 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 Borrower, 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 delivery Securities Exchange Commission under Section 13 or 15(d) of the financial statements 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; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender, each 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, any 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, such 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 documents. The Administrative Agent shall have no obligation to request the delivery or to maintain paper copies of the documents referred to above, and in subsections any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender and each Issuing Bank shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (ai) the Administrative Agent and/or the Co-Lead Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (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”); provided, however, that each Public Lender shall identify at least one employee who may receive material non-public information with respect to the Borrower or its securities. The Borrower hereby agrees that (A) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” by the Borrower which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (B) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Co-Lead Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, (x) to the fourth fiscal quarter of each fiscal year) above extent such Borrower Materials constitute Confidential Information, they shall be treated as set forth in §25 and (by) to the extent such Borrower Materials are not marked “PUBLIC” and posted on the Platform, such Borrower Materials will also be subject to the additional confidentiality provisions included on the Platform); (for the first three fiscal quarters of each fiscal year), C) all Borrower Materials marked “PUBLIC” are permitted to be made available through a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance portion of the MCRLP or MCRC, as applicable, Platform designated “Public Investor;” and (if applicableD) reconciliations the Administrative Agent and the Co-Lead Arrangers shall be entitled to reflect changes 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” and the Administrative Agent, the Issuing Banks and the Lenders agree not to trade securities on the basis of any Borrower Materials that are posted on the Platform and are not marked “PUBLIC.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC.” THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender, any Issuing Bank or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in GAAP since tort, contract or otherwise) arising out of the applicable Financial Statement DateBorrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, but only except to the extent that such changes losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by the Administrative Agent, a copy of each report (including no event shall any so-called letters of reportable conditions or letters of no material weakness) submitted Agent Party have any liability to the Borrower, MCRCany Lender, any Issuing Bank or any other Guarantor Person for indirect, special, incidental, consequential or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, punitive damages (as opposed to direct 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, MCRC or any other Guarantor or any such subsidiary;actual damages).
Appears in 1 contract
Samples: Credit Agreement (Staples Inc)
Financial Statements, Certificates and Information. The Borrower will deliver and will or cause MCRC to deliver be delivered to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety (90) 90 days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries at the end of such year, and the related audited consolidated statements of operationsincome, owner's changes in shareholders' equity (deficit) and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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 GAAPgenerally accepted accounting principles, and, in each case, and accompanied by an auditor's report prepared without qualification by Ernst & Young LLP or by another "Big Six" accounting firm, together with the Accountantsunaudited annual operating statement of each Mortgaged Property and the Mezzanine Property (which statement shall also be reconciled to the budget for the Mortgaged Property and the Mezzanine Property), together with a certification by Borrower's chief financial or chief accounting officer that the information contain in such statement fairly presents the operations of the Mortgaged Property and the Mezzanine Property for such period, and any other information the Banks may reasonably need to complete a financial analysis of the Borrower;
(b) as soon as practicable, but in any event not later than forty-five (45) 45 days after the end of each fiscal quarter of its first three the Borrower (3) fiscal quarters:
(i) in including the case of MCRLP, if preparedfourth quarter), copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements of operationsincome, owner's changes in shareholders' equity (deficit) and cash flows for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows operating statement for the portion of MCRC's fiscal year then elapsedMortgaged 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), with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries and the operations of the Mortgaged Property and the Mezzanine Property on the date thereof (subject to year-end adjustments);
(c) [Intentionally omitted];
(d) 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 Property, 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;
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement (a "Compliance Certificate") certified by the principal financial or accounting officer of the Borrower in the form of EXHIBIT D Exhibit C hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 9, and Section 9 hereof(if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(df) promptly if requested concurrently with the delivery of the financial statements described in subsections (b) and (c) above, a certificate signed by the Administrative AgentPresident or Chief Financial Officer 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, or if such Default or Event of Default has occurred, specifying the facts with respect thereto;
(g) contemporaneously with the filing, mailing or releasing thereof, copies of all press releases and all material of a copy financial nature filed with the SEC, if applicable, or sent to all of the members of the Borrower;
(h) as soon as practicable but in any event not later than 45 days after the end of each report fiscal quarter of the Borrower (including any so-called letters of reportable conditions or letters of no material weakness) submitted the fourth fiscal quarter in each year), updated Rent Rolls with respect to the Borrower, MCRC, or any other Guarantor Mortgaged Property and the Mezzanine Property and a summary of each Rent Roll in form reasonably satisfactory to the Agent;
(i) not later than 30 days following each acquisition of an interest in Real Estate by the Borrower or any of their respective subsidiaries by its Subsidiaries (which for the Accountants purposes of this Section 7.4(i) shall include the Investments described in connection with Section 8.3(j)), each annual audit of the books following: (i) a description of the property 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;
(j) 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 of the Mortgaged Property and the Mezzanine Property, in form and substance satisfactory to the Majority Banks;
(k) promptly after they are filed with the Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the Borrower, MCRC, or any other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase its Members and the Guarantor;
(l) not later than 45 days after the end of each fiscal quarter of the business 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 the Mezzanine Property as are from time to time prepared by or on behalf of the Borrower; and
(m) from time to time such other financial data and information in the possession of the Borrower (including without limitation auditors' management letters, MCRC or any property inspection and environmental reports and information as to zoning and other Guarantor or any such subsidiary;legal and regulatory changes affecting the Borrower) as the Agent may reasonably request.
Appears in 1 contract
Samples: Revolving Credit Agreement (Wellsford Real Properties Inc)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentLenders:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated and combined balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements and combined statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated and combined statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and combined statements to be in reasonable detail, prepared in accordance with GAAP, and, in each case, accompanied and audited by an auditor's report prepared without qualification by the Accountantsindependent certified public accountant;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated and combined balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements and combined statement of operations, owner's equity (deficit) income and consolidated and combined statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief financial officer or vice president treasurer of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT D hereto signed certified by the chief financial officer or vice president of finance treasurer of the MCRLP or MCRC, as applicable, Borrower in substantially the form of Exhibit C hereto (a "Compliance Certificate") and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof10;
(d) promptly if requested by as soon as practicable after the Administrative Agentfiling or mailing thereof, a copy copies of each report (including any so-called letters of reportable conditions all financial statements, disclosure statements, reports and proxies filed with the Securities and Exchange Commission or letters of no material weakness) submitted sent to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit stockholders of the books Borrower;
(e) as soon as practicable, but in any event not later than thirty (30) days after the filing of the 10K of the Borrower, MCRCannual income statements, or any other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase balance sheets and cash flow statements for the immediately succeeding fiscal year of the business Borrower and its Subsidiaries delivered to the Administrative Agent; and
(f) from time to time such other additional information regarding the financial position of the Borrower, MCRC or any other Guarantor or any such subsidiary;Borrower and its Subsidiaries as the Administrative Agent may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to the Administrative AgentAgent and each Secured Party:
(a) as soon as practicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP (i) the Borrower and (ii) CAI and its subsidiaries Subsidiaries, in each case, as at the end of such year, and the related audited consolidated statements and consolidating statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, andaudited and certified, in each case, accompanied by an auditor's report prepared without qualification and without an expression of uncertainty as to the ability of the Borrower or CAI, as the case may be, to continue as going concerns, by Deloitte, LLP, KPMG, LLP or other independent certified public accountants reasonably satisfactory to the AccountantsAdministrative Agent;
(b) as soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower and CAI, copies of the unaudited consolidated balance sheet of MCRLP (i) the Borrower and (ii) CAI and its subsidiaries Subsidiaries, in each case as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLP's the Borrower’s or CAI’s, as the case may be, fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or vice president of finance of MCRLP or MCRCCAI, as applicablethe case may be, that the information contained in such financial statements fairly presents in all material respects the financial position of MCRLP the Borrower or MCRC (CAI and its Subsidiaries, as the case may be) and its subsidiaries , on the date thereof (subject to normal year-end adjustmentsadjustments made in accordance with GAAP and the absence of footnotes);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) above, (for the first three fiscal quarters of each fiscal year), i) a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT Exhibit D hereto signed by (a “Compliance Certificate”), (ii) end of period utilization rates and per diem rental rate information with respect to all Containers in the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicableBorrower Fleet, and (if applicableiii) reconciliations to reflect changes the number and types of Containers in GAAP since the applicable Financial Statement Date, but only to Borrower Fleet and the extent that such changes aggregate Net Book Value and Original Equipment Cost of all Containers in GAAP affect the financial covenants set forth in Section 9 hereof; andBorrower Fleet, in each case at the end of such fiscal quarter or year, as the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereofmay be;
(d) promptly if contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed by CAI or any of its Subsidiaries with the Securities and Exchange Commission;
(e) on each Determination Date and (ii) at least five (5) Business Days prior to the date of any removal or sale of any assets not made in the ordinary course of business from the Borrowing Base, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month, sale date or other date as may reasonably be requested by the Administrative Agent;
(f) on each Determination Date, a copy of each report Manager Report;
(g) from time to time such other financial data and information (including any so-called letters of reportable conditions or letters of no material weaknessaccountants’ management letters) submitted to as the Borrower, MCRC, Administrative Agent or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Lender may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower and the Trust will deliver and will cause MCRC to deliver to the Administrative Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedTrust, the audited consolidated balance sheet of MCRLP the Trust and its subsidiaries Subsidiaries at the end of such year, and the related audited consolidated statements of operationsincome, owner's changes in shareholder’s equity (deficit) and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRCcase, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures as of the end of and for the previous fiscal year and all such statements to be in reasonable detail, prepared in accordance with GAAPGAAP (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 ’s report prepared without qualification by the AccountantsAccountants (and the Borrower also shall deliver the foregoing for FPLP on a consolidated basis); together with a certification by the principal financial or accounting officer of the Borrower and the Trust that the information contained in such financial statements is complete and correct in all material respects and fairly presents, in accordance with GAAP consistently applied throughout the period to which it applies, 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 Agent);
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) March 31, June 30 and September 30 fiscal quarters:
(i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP the Trust and its subsidiaries Subsidiaries, as at the end of such quarter, and the related unaudited consolidated statements of operationsincome, owner's changes in shareholders’ equity (deficit) and cash flows for the portion of MCRLP's the Trust’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on (which may be provided by inclusion in the same basis as used in preparation of MCRC's Form 10-Q statements of the Trust filed with the SECSEC for such period and delivered to the Agent), together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower and the Trust that the information contained in such financial statements is complete and correct in all material respects and fairly presents presents, in accordance with GAAP consistently applied throughout the period to which it applies, the financial position of MCRLP or MCRC (as the case may be) Trust and its subsidiaries 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 normal year-end adjustmentsadjustments and the absence of footnotes) (and the Borrower also shall deliver the foregoing for FPLP on a consolidated basis);
(c) simultaneously with as soon as practicable, but in any event not later than ninety (90) days after the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter end of each of its fiscal year) above years, a rent roll and (b) (for the first three fiscal quarters operating statement in respect of each fiscal year)Eligible Borrowing Base Property, a statement in the form of EXHIBIT D hereto signed certified by the chief financial or accounting officer or vice president of finance of the MCRLP or MCRC, Borrower as applicable, true and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereofcorrect;
(d) promptly if requested by as soon as practicable, but in any event not later than forty-five (45) days after the Administrative Agent, a copy end of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books fiscal quarters of the Borrower, MCRCa rent roll and operating statement in respect of each Eligible Borrowing Base Property, certified by the chief financial or any other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase accounting officer of the business of the Borrower, MCRC or any other Guarantor or any such subsidiaryBorrower as true and correct;
Appears in 1 contract
Samples: Secured Term Loan Agreement (First Potomac Realty Trust)
Financial Statements, Certificates and Information. The Borrower will deliver to the Administrative Agent (and the Administrative Agent will cause MCRC to promptly, after receipt thereof, deliver to the Administrative Agent:Lenders):
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal yearsyear (or, unlessif earlier, in within fifteen (15) days after the case of MCRC, MCRC has date required to be filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso Securities and Exchange Commission without giving effect to Section 7.4(g):
extensions) of the Borrower, (i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, in each case, accompanied by an auditor's report prepared 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 AccountantsAdministrative Agent and (ii) a statement certified by the chief financial officer or the treasurer of the Borrower in substantially the form of Exhibit B attached hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §8 hereof 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 forty-five (45) days after the end of each of its the first three fiscal quarters of each fiscal year (3or, if earlier, within ten (10) fiscal quarters:
days after the date required to be filed with the Securities and Exchange Commission without giving effect to extensions) of the Borrower, (i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLP's the Borrower’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief financial officer or vice president the treasurer of finance the Borrower that to the best of MCRLP or MCRCthe Borrower’s knowledge, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments)) and (ii) a Compliance Certificate as of such fiscal quarter end;
(c) simultaneously from time to time such other financial data and information as the Administrative Agent or any Lender may reasonably request;
(i) promptly upon becoming aware of the occurrence of any actual or claimed Event of Termination under any Material Securitization Transaction the result of which would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require the repurchase of the receivables sold thereunder, notice thereof, which notice shall describe such Event of Termination and indicate what steps the Borrower and its Subsidiaries are taking to remedy the same and (ii) promptly upon request therefor, such other information with respect thereto as the Administrative Agent shall reasonably request; and
(e) 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 Borrower, 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 delivery Securities Exchange Commission under Section 13 or 15(d) of the financial statements 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; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender, each 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, any 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, such 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 documents. The Administrative Agent shall have no obligation to request the delivery or to maintain paper copies of the documents referred to above, and in subsections any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender and each Issuing Bank shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (ai) the Administrative Agent and/or the Co-Lead Arrangers will make available to the Lenders and the Issuing Banks materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (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”); provided, however, that each Public Lender shall identify at least one employee who may receive material non-public information with respect to the Borrower or its securities. The Borrower hereby agrees that (A) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” by the Borrower which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (B) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Co-Lead Arrangers, the Issuing Banks and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, (x) to the fourth fiscal quarter of each fiscal year) above extent such Borrower Materials constitute Confidential Information, they shall be treated as set forth in §25 and (by) to the extent such Borrower Materials are not marked “PUBLIC” and posted on the Platform, such Borrower Materials will also be subject to the additional confidentiality provisions included on the Platform); (for the first three fiscal quarters of each fiscal year), C) all Borrower Materials marked “PUBLIC” are permitted to be made available through a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance portion of the MCRLP or MCRC, as applicable, Platform designated “Public Investor;” and (if applicableD) reconciliations the Administrative Agent and the Co-Lead Arrangers shall be entitled to reflect changes 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” and the Administrative Agent, the Issuing Banks and the Lenders agree not to trade securities on the basis of any Borrower Materials that are posted on the Platform and are not marked “PUBLIC.” Notwithstanding the foregoing, the Borrower shall be under no obligation to xxxx any Borrower Materials “PUBLIC.” THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender, any Issuing Bank or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in GAAP since tort, contract or otherwise) arising out of the applicable Financial Statement DateBorrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, but only except to the extent that such changes losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by the Administrative Agent, a copy of each report (including no event shall any so-called letters of reportable conditions or letters of no material weakness) submitted Agent Party have any liability to the Borrower, MCRCany Lender, any Issuing Bank or any other Guarantor Person for indirect, special, incidental, consequential or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, punitive damages (as opposed to direct 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, MCRC or any other Guarantor or any such subsidiary;actual damages).
Appears in 1 contract
Samples: Credit Agreement (Staples Inc)
Financial Statements, Certificates and Information. The Borrower will deliver to the Administrative Agent (and the Administrative Agent will cause MCRC to promptly, after receipt thereof, deliver to the Administrative Agent:Lenders):
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal yearsthe Borrower, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, in each case, accompanied by an auditor's report prepared 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 AccountantsAdministrative Agent and (ii) a statement certified by the chief financial officer or the treasurer of the Borrower in substantially the form of Exhibit C hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §7 hereof 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 forty-five (45) days after the end of each of its the first three (3) fiscal quarters:
quarters of each fiscal year of the Borrower, (i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows for the portion of MCRLP's the Borrower’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief financial officer or vice president the treasurer of finance the Borrower that to the best of MCRLP or MCRCthe Borrower’s knowledge, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments)) and (ii) a Compliance Certificate as of such fiscal quarter end;
(c) simultaneously from time to time such other financial data and information as the Administrative Agent or any Lender may reasonably request;
(i) promptly upon becoming aware of the occurrence of any actual or 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 information with respect thereto as the Administrative Agent shall reasonably request;
(e) 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 Borrower, 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 delivery Securities Exchange Commission under Section 13 or 15(d) of the financial statements referred Securities Exchange Act of 1934, and not otherwise required to in subsections be delivered to the Administrative Agent pursuant hereto; and
(af) (for promptly after the fourth fiscal quarter same are available, copies of each fiscal yearof the Offer Documents. 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 §26 hereof. Documents required to be delivered pursuant to this §5.4 (to the extent any such documents are included in materials otherwise filed with the SEC) above 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; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent 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 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 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 documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by §§5.4(a) and (b) (for the first three fiscal quarters of each fiscal year), a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations hereof to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (i) the Administrative Agent and/or the Arranger will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on 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 the Borrower or its securities) (each, a copy of each report “Public Lender”). The Borrower hereby agrees that (including any so-called letters of reportable conditions or letters of no material weaknessA) submitted all Borrower Materials that are to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” by the Accountants in connection with each annual audit of the books of the BorrowerBorrower which, MCRCat a minimum, 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, MCRC or any other Guarantor or any such subsidiary;shall mean that
Appears in 1 contract
Samples: Credit Agreement (Staples Inc)
Financial Statements, Certificates and Information. The Borrower Borrowers will deliver and will cause MCRC to deliver to each of the Administrative AgentLenders:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each the fiscal year of its fiscal yearsthe Borrowers ended December 31, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared2002, the audited consolidated balance sheet of MCRLP and its subsidiaries the Borrowers as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPgenerally accepted accounting principles, and, in each case, accompanied and certified by an auditor's report prepared without qualification Ernst & Young or by other independent certified public accounts satisfactory to the AccountantsAdministrative Agent;
(b) as soon as practicable, but in any event not later than within forty-five (45) days after of the end of each fiscal quarter of its first three (3) the Borrowers commencing with the fiscal quarters:
(i) in the case of MCRLPquarter ended December 31, if prepared2002, copies of the unaudited consolidated balance sheet of MCRLP and its subsidiaries the Borrowers as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLP's the Borrowers' fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrowers that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) and its subsidiaries Borrowers on the date thereof (subject to year-end adjustments);
(c) as soon as practicable, but in any event within forty-five (45) days of the end of the calendar month ending December 31, 2002, and within thirty (30) days after the end of each calendar month thereafter, unaudited monthly consolidated financial statements of the Borrowers 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) (for the fourth fiscal quarter of each fiscal year) above and ), (b) and (for the first three fiscal quarters of each fiscal year)c) above, a statement in the form of EXHIBIT D hereto signed certified by the chief principal financial or accounting officer or vice president of finance of the MCRLP or MCRC, as applicable, Parent in form and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only substance satisfactory to the extent that such changes in GAAP affect Agents (the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, "COMPLIANCE CERTIFICATE") and setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 ss.12 and Section 9 hereof(if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(de) promptly if requested by promptly, copies of all pleadings, papers, notices, orders and other papers filed in or issued from the Bankruptcy Court or any appellate court in the Cases and copies of all reports filed with the Office of the United States Trustee relating to any of the Cases;
(f) on the first Business Day of each month, a rolling thirteen (13) week cash flow projection, of the Borrowers in a form and in such detail as is reasonably satisfactory to the Administrative Agent, updating the prior cash flow projection and, for prior periods ending up to one week prior to the date of the report, showing actual performance and any variances of actual performance from projected performance;
(g) from time to time upon request of any Agent, a copy summary of each report accounts receivable and accounts payable of the Borrowers, including accounts payable to lessors of goods and holders of Prior Permitted Liens on account of dispositions of goods or collateral;
(h) not less frequently than semi-monthly, and from time to time upon any Agent's request, a Borrowing Base Certificate in the form of EXHIBIT D attached hereto (the "BORROWING BASE CERTIFICATE");
(i) from time to time upon request, a written or oral report, in detail reasonably satisfactory to any Agent, as to the status of the Reorganization Plan; and
(j) from time to time such other financial data and information (including accountants' management letters) as any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Agent may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver Deliver to the Administrative AgentIssuer:
(a) as soon as practicable, but in any event not later than ninety (90) within 150 days after the end of each of its Everest Bermuda's fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedyear, the audited consolidated balance sheet of MCRLP and its subsidiaries at the end of such year, the related audited consolidated financial statements of operations, owner's equity (deficit) and cash flows Everest Bermuda for the year then ended, that fiscal year. The consolidated financial statements will set forth in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year as available, all reported on by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing (without a "going concern" or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all such statements to be in reasonable detail, prepared material respects the financial condition and results of operations of Everest Bermuda and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP, and, in each case, accompanied by an auditor's report prepared without qualification by the AccountantsGAAP consistently applied;
(b) as soon as practicablecommencing with the fiscal quarter ending September 30, but in any event not later than forty-five (45) 2021, within 70 days after the end of each of its the first three quarters of each fiscal year of Everest Bermuda, unaudited consolidated balance sheet and related statements of operations for that financial quarter and the fiscal year to date. The consolidated financial statements will set forth in each case in comparative form the figures for the corresponding period or periods of (3) fiscal quarters:
(i) or, in the case of MCRLPthe balance sheet, if prepared, copies as of the unaudited consolidated balance sheet end of) the previous fiscal year as available, all certified by a Financial Officer of MCRLP Everest Bermuda as presenting fairly in all material respects the financial condition and results of operations of Everest 381 357363582 Bermuda and its subsidiaries as at the end of such quarter, the related unaudited consolidated statements of operations, owner's equity (deficit) and cash flows for the portion of MCRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared Subsidiaries in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECconsistently applied, together with a certification by the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) and its subsidiaries on the date thereof (subject to normal year-end adjustments)audit adjustments and the absence of footnotes;
(c) simultaneously concurrently with the delivery to the Issuer of the financial statements referred to in subsections (aunder Sections 5.1(a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year5.1(b), a statement in the form of EXHIBIT D hereto duly completed Compliance Certificate signed by the chief financial officer or vice president a Financial Officer of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereofEverest Bermuda;
(d) promptly if requested by the Administrative Agentwithin ten days after A.M. Best, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, S&P or any other Guarantor nationally recognized rating agency shall have announced a change in its financial strength rating of such Borrower or any Insurance Subsidiary thereof, or shall have first assigned a rating thereto, written notice of their respective subsidiaries such changed or initial rating;
(e) [reserved];
(f) within ten Business Days after the end of each calendar month, a certificate (a "Collateral Compliance Certificate") substantially in the form of appendix 2 attached hereto, signed by an officer of such Borrower, certifying compliance with the collateral coverage requirement set forth in Section 5.10 and demonstrating, in detail satisfactory to the Issuer, the Fair Market Value of such Borrower's Eligible Collateral as of the last Business Day of the immediately preceding month; and
(g) promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Borrower, or compliance with the terms of this Agreement, as the Issuer may reasonably request. Information required to be delivered pursuant to the foregoing Section 5.1(a), (b) and (c) shall be deemed to have been delivered on the date on which such Borrower delivers copies of such information to the Issuer or on the date on which such Borrower provides notice (including notice by electronic transmission) to the Issuer that such information has been posted on a website identified in such notice and accessible by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Issuer without charge.
Appears in 1 contract
Samples: Letter of Credit Facility Agreement (Everest Re Group LTD)
Financial Statements, Certificates and Information. The Borrower Borrowers will deliver and will cause MCRC to deliver to the Administrative Agent and any Lender upon request of such Lender (made through the Administrative Agent:):
(a) as soon as practicable, but within five (5) days after the filing with the Securities and Exchange Commission of the Parent’s Annual Report on Form 10-K with respect to each fiscal year (and in any event not later than ninety within one hundred (90100) days after the end of each of its such fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedyear), the audited consolidated balance sheet sheets of MCRLP and its subsidiaries the Consolidated Group as at the end of such year, and the related audited consolidated statements of operations, owner's equity (deficit) income and cash flows for of the year then endedConsolidated Group, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year and year, all such financial statements to be in reasonable detail, prepared in accordance with GAAP, and, in each case, GAAP and audited and accompanied by an auditor's a report prepared without qualification by and opinion of the Accountants, which report and opinion shall state that such financial statements present fairly the financial position of the Consolidated Group and shall not be subject to any qualification as to going concern or the scope of the audit;
(b) as soon as practicable, but within five (5) days after the filing with the Securities and Exchange Commission of the Parent’s Quarterly Report on Form 10-Q with respect to each of the first three (3) fiscal quarters of each fiscal year (and in any event not later than forty-five (45) within 55 days after the end of each of its first three (3) such fiscal quarters:
(i) in the case of MCRLP, if preparedquarter), copies of the unaudited consolidated balance sheet sheets of MCRLP the Consolidated Group as at the end of such fiscal quarter, and its subsidiaries the related consolidated statements of income and cash flows of the Consolidated Group as at the end of such quarter, subject to normal year-end adjustments and the related unaudited consolidated statements absence of operationsfootnotes, owner's equity (deficit) and cash flows for the portion of MCRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on subject to normal year-end adjustments and the same basis as used in preparation absence of MCRC's Form 10-Q statements filed with the SECfootnotes, together with a certification by the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, CFO that the information contained in such consolidated financial statements are prepared in accordance with GAAP and fairly presents present the consolidated financial position condition of MCRLP or MCRC (the Consolidated Group as at the case may be) and its subsidiaries 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 subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT D hereto signed Compliance Certificate certified by the chief financial officer or vice president of finance CFO that the Consolidated Group is in compliance with the covenants contained in Sections 7.14 and 7.15 as of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since end of the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, period setting forth in reasonable detail computations evidencing compliance such compliance; provided, that if the Borrowers shall at the time of issuance of such certificate 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 a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with the covenants contained in Section 8.7 and Section 9 hereofrespect thereto;
(d) contemporaneously with, or promptly if requested following, the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Borrowers; and
(e) from time to time, such other financial data and other information (including accountants’ management letters and a copy of the Borrowers’ annual budget and projections for any fiscal year) as the Lenders may reasonably request. Borrowers shall be deemed to have delivered reports and other information referred to in clauses (a), (b), and (d) of this Section 6.04 when (A) such reports or other information have been posted on the Internet website of the Securities and Exchange Commission (hxxx://xxx.xxx.xxx) or on Parent’s Internet website as previously identified to the Administrative Agent and Lenders and (B) Parent or Borrowers have notified the Administrative Agent by electronic mail of such posting. The Borrowers hereby acknowledge that (a) the Administrative Agent and/or the Arrangers may, but shall not be obligated to, make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on, IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission 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 Parent or its Subsidiaries, 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 Borrowers hereby agree that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, a copy of each report the Arrangers, the L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (including any so-called letters of reportable conditions or letters of no material weaknessalthough it may be sensitive and proprietary) submitted with respect to the BorrowerBorrowers or their securities for purposes of United States Federal and state securities laws (provided, MCRChowever, or any other Guarantor or any of their respective subsidiaries by that to the Accountants extent such Borrower Materials constitute Information, they shall be treated as set forth in connection with each annual audit Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the books Platform designated “Public Side Information;” and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the BorrowerPlatform not designated “Public Side Information.” Notwithstanding the foregoing, MCRC, or the Borrowers shall be under no obligation to mxxx 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, MCRC or any other Guarantor or any such subsidiary;Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Waste Connections, Inc.)
Financial Statements, Certificates and Information. The Borrower will deliver and will or cause MCRC to deliver be delivered to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries at the end of such year, and the related audited consolidated statements of operationsincome, ownerchanges in shareholder's equity (deficit) and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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 GAAPgenerally accepted accounting principles, and, in each case, and accompanied by an auditor's report prepared without qualification by Deloitte & Touche, or by another "Big Six" accounting firm, the AccountantsForm 10-K filed with the SEC (unless the SEC has approved an extension, in which event the Borrower will deliver to the Agent and each of the Banks a copy of the Form 10-K simultaneously with delivery to the SEC), and any other information the Banks may need to complete a financial analysis of the Borrower and its Subsidiaries;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its the first three (3) fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements of operationsincome, ownerchanges in shareholder's equity (deficit) and cash flows for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in a statement showing the case of MCRC, copies aging of the unaudited consolidated balance sheet of MCRC receivables and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows payables for the portion of MCRC's fiscal year then elapsedMortgaged Properties, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on generally accepted accounting principles (which may be provided by inclusion in the same basis as used in preparation of MCRC's Form 10-Q statements filed with of the SECBorrower for such period provided pursuant to subsection (c) below), together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) 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 the Borrower in each year, copies of Form 10-Q filed with the SEC (unless the SEC has approved an extension in which event the Borrower will deliver such copies of the Form 10-Q to the Agent and each of the Banks simultaneously with delivery to the SEC);
(d) as soon as practicable, but in any event not later than forty-five (45) days after the end of each fiscal quarter of the Borrower (including the fourth fiscal quarter in each year), (i) copies of a consolidated statement of Operating Cash Flow for such fiscal quarter for the Borrower and its Subsidiaries and a statement of Operating Cash Flow for such fiscal quarter for the Borrower and each of the Mortgaged Properties, prepared on a basis consistent with the statement furnished pursuant to Section 6.4(c) together with a certification by the chief financial or chief accounting officer of the general partner of the Borrower, that the information contained in such statement fairly presents the Operating Cash Flow of the Borrower and its Subsidiaries and the Mortgaged Properties for such period, and (ii) the Borrower's best estimate on a quarterly and rolling four quarter basis of the Borrower's taxable net income;
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement (a "Compliance Certificate") certified by the principal financial or accounting officer of the general partner of the Borrower in the form of EXHIBIT D Exhibit C hereto signed by (or in such other form as the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicableAgent may approve from time to time) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 9 and Section 9 hereofthe other covenants described therein, and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(df) promptly if requested 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 the Guarantor or the partners of the Borrower;
(g) as soon as practicable but in any event not later than forty-five (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 Properties and a summary of each Rent Roll and rolling four quarter operating statements and tenant sales reports with respect to the Mortgaged Properties, all in form reasonably satisfactory to the Majority Banks;
(h) not later than thirty (30) days following each acquisition of an interest in Real Estate having a fair market value in excess of $1,000,000.00 by the Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor Borrower or any of their respective subsidiaries by its Subsidiaries (which for the Accountants purposes of this Section 7.4(h) shall include the Investments described in connection with Section 8.3(i)), each annual audit of the books following (provided that with respect to the Investments described in Section 8.3(i), the following items shall be provided to the extent reasonably available to the Borrower or its Subsidiaries): (i) the closing statement relating to such acquisition, (ii) a description of the property acquired, (iii) a certificate from the chief financial or accounting officer of the Borrower stating that (A) an environmental site assessment has been prepared by an Environmental Engineer and such assessment contains no material qualifications with respect to such Real Estate and (B) a statement of condition of such Real Estate has been prepared by a construction engineer and such statement contains no material qualifications, (iv) an historical operating statement of such Real Estate for such period as may be available to the Borrower and a current rent roll for such Real Estate, and (v) 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) promptly after they are filed with the Internal Revenue Service, copies of all annual federal income tax returns and amendments thereto of the Borrower;
(j) promptly upon completion, MCRCcopies of such market studies relating to the Mortgaged Property and the other Eligible Real Estate as are from time to time prepared by or on behalf of the Borrower or its Subsidiaries;
(k) not later than thirty (30) days following each acquisition of an interest in a Subsidiary, or any other Guarantor or such subsidiary each of the following: (i) the name and structure of the Subsidiary, (ii) a description of the property owned by such Accountants Subsidiary, and (iii) such other information as the Agent may reasonably request;
(l) simultaneously within the delivery of the financial statement referred to in subsection (a) above, a statement (i) listing the Real Estate owned by the Borrower and its Subsidiaries (or in connection with any interim audit thereof pertaining to any phase 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 business Borrower and its 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, and (iii) listing the properties of the Borrower and its Subsidiaries which are under "development" (as used in Section 8.9) and providing a brief summary of the status of such development;
(m) not later than thirty (30) days prior to the end of each fiscal year of the Borrower a budget and business plan for the next fiscal year; and
(n) 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, MCRC or any other Guarantor or any such subsidiary;) as the Agent may reasonably request.
Appears in 1 contract
Samples: Master Revolving Credit Agreement (Ramco Gershenson Properties Trust)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to the Administrative Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g)::
(i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP and its subsidiaries at the end of such year, the related audited consolidated statements of operations, owner's equity (deficit) and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) 432 at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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, and, in each case, accompanied by an auditor's report prepared without qualification by the Accountants;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) fiscal quarters:
(i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP and its subsidiaries as at the end of such quarter, the related unaudited consolidated statements of operations, owner's equity (deficit) and cash flows for the portion of MCRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SEC, together with a certification by the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) and its subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year), a statement in the form of EXHIBIT Exhibit D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 ss.9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 ss.8.7 and Section 9 ss.9 hereof;
(d) promptly if requested by the Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;
(e) contemporaneously with the filing or mailing thereof, copies of all material of a financial nature sent to the holders of any Indebtedness of the Borrower or any Guarantor (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) subject to subsection (g) below, 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 MCRC;
(g) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of MCRC, copies of the Form 10-K statement filed by MCRC 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 MCRC, copies of the Form 10-Q statement filed by MCRC with the SEC for such fiscal quarter, provided that, in either case, if MCRC has filed an extension for the filing of such statements, MCRC shall deliver such statements to the Administrative Agent within ten (10) days after the filing thereof with the SEC which filing shall be within fifteen (15) days of MCRC's filing for such extension or such sooner time as required to avert a Material Adverse Effect on MCRC;
(h) from time to time, but not more frequently than once each calendar quarter so long as no Default or Event of Default has occurred and is continuing, such other financial data and information about the Borrower, MCRC, the other Guarantors, their respective Subsidiaries, the Real Estate and the Partially-Owned Entities as the Administrative Agent or any Lender acting through the Administrative Agent may reasonably request, and which is prepared by such Person in the normal course of its business or is required for securities and tax law compliance, including without limitation, pro forma financial statements described in ss.9.9(b)(ii) complete rent rolls for the Unencumbered Properties and summary rent rolls for the other Real Estate, existing environmental reports, and insurance certificates with respect to the Real Estate (including the Unencumbered Properties) and tax returns (following the occurrence of a Default or Event of Default or, in the case of MCRC, to confirm MCRC's REIT status); and
(i) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, updates to Schedule 6.3 and Schedule 6.19 hereto. 434
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower Each of the Borrowers will deliver to each of the Agent and will cause MCRC to deliver to the Administrative AgentLenders:
(a) as soon as practicable, but in any event not later than ninety one hundred (90100) days after the end of each fiscal year of its fiscal yearsZale, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP Zale and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPgenerally accepted accounting principles, and, in and each case, accompanied by an auditor's report prepared of such financial statements certified without qualification by Arthxx Andexxxx XXX or by another "big six" accounting firm or by other independent certified public accountants reasonably satisfactory to the AccountantsAgent, and (ii) the annual 10-K reports of Zale filed with the Securities and Exchange Commission;
(b) as soon as practicable, but in any event not later than forty-five fifty (4550) days after the end of each of its the first three (3) fiscal quarters:
quarters of each fiscal year of Zale, (i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP Zale and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income for such quarter and cash flows for the portion of MCRLPZale's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements and the related consolidated statement of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRCZale's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with (ii) a certification by such Financial Officer of each of the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, Borrowers that the information contained in such management financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Zale and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments), (iii) a narrative discussion of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commission;
(c) as soon as practicable, but in any event within thirty (30) days after the end of each fiscal month which is not the last month of a fiscal quarter of Zale, (i) unaudited monthly consolidated balance sheet of Zale and its Subsidiaries as at the end of such fiscal month, the related consolidated statement of income for such fiscal month and for the portion of Zale's fiscal year then elapsed, and the related consolidated statement of cash flow for the portion of Zale's fiscal year then elapsed, each prepared by management of Zale on a basis consistent with its method (existing as of the Closing Date) of preparing management financial statements, and (ii) a certification by a Financial Officer of each of the Borrowers that the information contained in such management financial statements fairly presents the financial condition of Zale and its Subsidiaries on the date thereof (subject to year-end adjustments);
(i) simultaneously with the delivery of the management prepared financial statements referred to in subsections (b) and (c) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable period during the prior fiscal year of the Borrowers, and (ii) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by a Financial Officer of each of the Borrowers in substantially the form of EXHIBIT D Exhibit E hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 10 (and including calculations with respect to the financial information required by Section 9 hereof5.13 in connection with possible Performance Adjustments) and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(de) promptly if requested within ten (10) Business Days after the filing or mailing thereof, copies of all material reports of a financial nature filed by either of the Borrowers with the Securities and Exchange Commission or sent to the stockholders of Zale (other than the annual 10-K reports and the quarterly 10-Q reports of Zale delivered pursuant to Sections 8.4(a) and (b), respectively);
(f) monthly within thirty (30) days after the end of each fiscal month, a Borrowing Base Report, in the form of Exhibit A hereto, setting forth (i) the amount of Eligible Inventory and (ii) the Borrowing Base, each as at the end of the fiscal month most recently ended, together with supporting schedules and documentation, with each such Borrowing Base Report to be accompanied by a certification by a Financial Officer of each of the Borrowers that the information contained in such Borrowing Base Report is true and accurate in all material respects;
(g) within thirty (30) days after the end of each fiscal month, the monthly "Settlement Statement" of ZFT (the "Receivables Purchase Report") for the immediately preceding fiscal month, prepared in accordance with the requirements of the Receivables Securitization Facility Documents and such other information with respect to purchase and sale of ZFT Receivables pursuant to the Receivables Securitization Facility Documents as the Agent shall request in the exercise of its reasonable discretion;
(h) as soon as practicable and in any event by the Administrative Agent, a copy fiftieth (50th) day following the end of each report fiscal quarter, the quarterly performance package of JFS describing yields, delinquencies and such other information relating to the performance of all accounts receivable of Zale and its Subsidiaries, including ZFT Receivables, as the Agent shall request;
(i) as soon as is practicable and in no event less frequently than on an annual basis no later than sixty (60) days following the end of each fiscal year of the Borrowers, the Borrowers shall deliver their business plan, including the assumptions used in the preparation of such business plan; and
(j) from time to time such other financial data and information (including any so-called letters of reportable conditions or letters of no material weaknessaccountants and management letters) submitted to as the Borrower, MCRC, Agent or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Lender may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower and Guarantor will deliver and will or cause MCRC to deliver be delivered to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety one hundred (90100) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedGuarantor, the audited consolidated Consolidated balance sheet of MCRLP Guarantor and its subsidiaries Subsidiaries at the end of such year, and the related audited consolidated Consolidated statements of operationsincome, ownerchanges in shareholder's equity (deficit) and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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 GAAPgenerally accepted accounting principles, and, in each case, and accompanied by an auditor's report prepared without qualification by Grant Thornton LLP or by a "Big Five" accounting firm, the AccountantsForm 10-K xx Xxxxxxxxx filed with the SEC (unless the SEC has approved an extension, in which event Guarantor will deliver to the Agent and each of the Banks a copy of the Form 10-K simultaneously with delivery to the SEC), a statement of Guarantor's taxable net income for the prior fiscal year, and any other information the Banks may need to complete a financial analysis of the Guarantor and its Subsidiaries;
(b) as soon as practicable, but in any event not later than fortyfifty-five (4555) days after the end of each of its the first three (3) fiscal quarters:
(i) in quarters of the case of MCRLPBorrower and Guarantor, if preparedrespectively, copies of the unaudited consolidated Consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries and Guarantor and its Subsidiaries, respectively, as at the end of such quarter, and the related unaudited consolidated Consolidated statements of operationsincome, ownerchanges in shareholder's equity (deficit) and cash flows for the portion of MCRLPthe Borrower's and Guarantor's, respectively, fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in a statement showing the case of MCRC, copies aging of the unaudited consolidated balance sheet of MCRC receivables and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows payables for the portion of MCRC's fiscal year then elapsedCollateral Properties, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on generally accepted accounting principles (which, as to Guarantor, may be provided by inclusion in the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECof Guarantor for such period provided pursuant to subsection (c) below), together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRCthe Borrower and Guarantor, as applicablerespectively, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) such Person and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) as soon as practicable, but in any event not later than fifty-five (55) days after the end of each of the first three (3) fiscal quarters of Guarantor in each year, copies of Form 10-Q filed with the SEC (unless the SEC has approved an extension in which event Guarantor will deliver such copies of the Form 10-Q to the Agent and each of the Banks simultaneously with delivery to the SEC);
(d) as soon as practicable, but in any event not later than fifty-five (55) days after the end of the first three (3) fiscal quarters of the Borrower, copies of an operating statement of operating cash flow for such fiscal quarter for the Borrower and an operating statement of operating cash flow for such fiscal quarter for the Borrower and each of the Collateral Properties, prepared on a basis consistent with the statement furnished pursuant to Section 6.4(c) together with a certification by the chief financial or chief accounting officer of the Borrower, that the information contained in such statement fairly presents the financial position of the Borrower and the Collateral Properties for such period;
(e) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement (a "Compliance Certificate") certified by the principal financial or accounting officer of Guarantor and the Borrower in the form of EXHIBIT D Exhibit C hereto signed by (or in such other form as the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicableAgent may approve from time to time) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 9 of the Secured Revolving Credit Agreement and Section 9 hereofthe other covenants described therein, and (if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(df) promptly if requested by contemporaneously with the Administrative Agentfiling or mailing thereof, copies of all material of a copy financial nature filed with the SEC or sent to the stockholders of Guarantor or the partners of the Borrower;
(g) as soon as practicable but in any event not later than fifty-five (55) days after the end of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books first three (3) fiscal quarters of the Borrower, MCRCan updated Rent Roll aggregating information for the Collateral Properties and operating statements and tenant sales reports with respect to the Collateral Properties with respect to such fiscal quarter, or such statements and reports to be in form reasonably satisfactory to the Agent;
(h) as soon as practicable but in any other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase event not later than one hundred (100) days after the end of the business fourth fiscal quarter of the Borrower, MCRC an updated Rent Roll aggregating information for the Collateral Properties and rolling four (4) quarter operating statements and tenant sales reports with respect to the Collateral Properties, such statements and reports to be in form reasonably satisfactory to the Agent;
(i) 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;
(j) [INTENTIONALLY OMITTED];
(k) simultaneously with the delivery of the financial statement referred to in subsection (a) above, a statement (i) listing the Real Estate owned by the Borrower (or in which the Borrower owns an interest) and stating the location thereof, the date acquired and the acquisition cost, and (ii) listing the Indebtedness of the Borrower (excluding Indebtedness of the type described in Section 8.1(b)-(e) of the Secured Revolving Credit Agreement), 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,
(l) not later than thirty (30) days prior to the end of each fiscal year of the Borrower a budget and business plan for the Collateral Properties for the next fiscal year;
(m) as soon as practicable, but in any event not later than one hundred (100) days after the end of each fiscal year of the Borrower, the unaudited balance sheet of the Borrower at the end of such year, and the related unaudited statements of income, changes in shareholder's equity and cash flows for such year, each 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 generally accepted accounting principles, and accompanied by 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 Borrower on the date thereof;
(n) to the extent not covered above, copies of the financial statements delivered to the lenders under the Secured Revolving Credit Agreement; and
(o) from time to time such other financial data and information in the possession of the Borrower, the Guarantor or any such subsidiary;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, the Guarantor or their respective Subsidiaries) as the Agent may reasonably request.
Appears in 1 contract
Samples: Bridge Loan Agreement (Ramco Gershenson Properties Trust)
Financial Statements, Certificates and Information. The Such Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentLenders:
(a) as soon as practicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedCAI, the audited consolidated balance sheet of MCRLP CAI and its subsidiaries Subsidiaries, as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, andand certified, in each case, accompanied by an auditor's report prepared without qualification and without an expression of uncertainty as to the ability of CAI or any of its Subsidiaries to continue as going concerns, by KPMG LLP or by other independent certified public accountants satisfactory to the AccountantsAdministrative Agent;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its the first three (3) fiscal quarters:
(i) in the case quarters of MCRLP, if preparedeach fiscal year of CAI and its Subsidiaries, copies of the unaudited consolidated balance sheet of MCRLP CAI and its subsidiaries Subsidiaries, as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and statement of cash flows flow for the portion of MCRLP's the fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, CAI that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) CAI and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of CAI in substantially the form of EXHIBIT Exhibit D hereto signed by (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, covenants contained in §10 and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Balance Sheet Date;
(i) contemporaneously with the filing or mailing thereof, but only copies of all material of a financial nature filed with the Securities and Exchange Commission or with any national securities exchange or sent to the extent that stockholders of CAI or its 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 notice or other correspondence received from the Securities and Exchange Commission or any national securities exchange concerning any investigation or possible investigation or other inquiry by such changes in GAAP affect agency regarding any financial or other operational results of CAI or any of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect;
(e) within forty-five days (45) days of the financial covenants set forth in Section 9 hereof; end of each calendar month and, in any case, simultaneously with the case delivery of MCRLPa 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 in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if 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;
(f) simultaneously with the delivery of the financial statements referred to in subsections (a) and (b) above, a copy report listing the aggregate number of each report (including any so-called letters of reportable conditions Containers owned, rented, leased or letters of no material weakness) submitted managed by the such Borrower and its Subsidiaries, together with monthly utilization rate and per diem rental rate information with respect to the BorrowerContainers in form and detail satisfactory to the Administrative Agent; and
(g) from time to time such other financial data and information (including, MCRCwithout limitation, accountants’ management letters and consolidating financial statements of CAI and its Subsidiaries) as the Administrative Agent or any other Guarantor Lender may reasonably request. Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders materials and/or information provided by or on behalf of any Borrower or any of their respective subsidiaries its Subsidiaries hereunder (collectively, “Borrower Materials”) by posting the Accountants in connection with each annual audit Borrower Materials on SyndTrak or another similar electronic system (the “Platform”) and (b) certain of the books Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that so long as the Borrowers are 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,” each Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuer, the Swing Line Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §16.4); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Borrower, MCRC, or Platform designated “Public Investor;” and (z) the Administrative Agent and the Arrangers shall be entitled to treat any other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the business of Platform not designated “Public Investor.” Notwithstanding the Borrowerforegoing or anything to the contrary contained herein, MCRC or no Borrower shall be under any other Guarantor or obligation to xxxx any such subsidiary;Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Revolving Credit Agreement (CAI International, Inc.)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety ninety-five (9095) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):Borrower:
(i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP and its subsidiaries the Borrower, as at the end of such fiscal year, the related audited consolidated statements of operations, owner's equity (deficit) and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and;
(ii) in the case of MCRC, the audited consolidated consolidating balance sheet of MCRC the Borrower, listing each Consolidated Subsidiary and its subsidiaries (includingeach Excluded Fund, without limitation, MCRLP and its subsidiaries) as at the end of such fiscal year, ;
(iii) the related audited consolidated statements statement of operations, stockholders' equity (deficit) income and consolidated statement of cash flows of the Borrower for such fiscal year; and
(iv) the year then ended, in each case with supplemental consolidating schedules statement of income only (except for and not the consolidating statements of cash flow flow) of the Borrower, listing each Consolidated Subsidiary and stockholders' equityeach Excluded Fund for such fiscal year. Each of the balance sheets and statements delivered under this Section 6.4(a) provided by MCRC; each setting shall (I) set forth in comparative form the figures for the previous fiscal year and all such statements to year; (II) be in reasonable detail, detail and prepared in accordance with GAAPGAAP based on the records and books of account maintained as provided in Section 6.3; (III) as to items (i) and (iii) above, and, in each case, include footnotes or otherwise be accompanied by an auditor's report prepared without qualification information outlining in sufficient detail reasonably satisfactory to the Administrative Agent the effect of consolidating Excluded Funds, if applicable, and be accompanied by (or be delivered concurrently with the financial statements under this Section 6.4(a)) a certification by the Accountantsprincipal financial or accounting officer of the Borrower that the information contained in such financial statements presents fairly in all material respects the consolidated financial position of the Borrower on the date thereof and consolidated results of operations and consolidated cash flows of the Borrower for the periods covered thereby; and (IV) as to items (i) and (iii) above, be certified, without limitation as to scope, by KPMG LLP or another firm of independent certified public accountants reasonably satisfactory to the Administrative Agent, and shall be accompanied by (or be delivered concurrently with the financial statements under this Section 6.4(a)) a written statement from such accountants to the effect that in connection with their audit of such financial statements nothing has come to their attention that caused them to believe that the Borrower has failed to comply with the terms, covenants, provisions or conditions of Section 6.3, Section 7, and Section 8 of this Credit Agreement as to accounting matters (provided that such accountants may also state that the audit was not directed primarily toward obtaining knowledge of such noncompliance), or, if such accountants shall have obtained knowledge of any such noncompliance, they shall disclose in such statement any such noncompliance; provided that such accountants shall not be liable to the Banks for failure to obtain knowledge of any such noncompliance;
(b) as soon as practicable, but in any event not later than forty-five fifty (4550) days after the end of each of its the first three (3) fiscal quarters:
quarters of each fiscal year of the Borrower, (i) in the case of MCRLP, if prepared, copies of the unaudited interim condensed consolidated balance sheet of MCRLP and its subsidiaries the Borrower as at the end of such fiscal quarter, and (ii) the related unaudited interim condensed consolidated statements statement of operations, owner's equity (deficit) income and unaudited interim condensed consolidated statement of cash flows flow of the Borrower for such fiscal quarter and for the portion of MCRLP's the Borrower’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and, with respect to clauses (i) and (ii), prepared in a manner consistent with the accounting practices and policies employed with respect to the audited financial statements reported in the Borrower’s most recent Form 10-K filed with the Securities and Exchange Commission (subject to the application of accounting principles as of the implementation date of, and with respect to, Financial Accounting Standards Board Interpretative No. 46-Revised) and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form Rule 10-Q statements filed with 01 of Regulation S-X of the SECSecurities and Exchange Commission, together with and including footnotes or otherwise accompanied by information outlining in sufficient detail reasonably satisfactory to the Administrative Agent the effect of consolidating Excluded Funds, if applicable, and concurrently therewith a certification by the chief principal financial or accounting officer or vice president of finance the Borrower that, in the opinion of MCRLP or MCRCmanagement of the Borrower, as applicableall adjustments necessary for a fair presentation of (A) the results of operations of the Borrower for the periods covered thereby, that the information contained in such financial statements fairly presents (B) the financial position of MCRLP or MCRC (as the case may be) and its subsidiaries on Borrower at the date thereof thereof, and (C) the cash flows of the Borrower for periods covered thereby have been made (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial officer, treasurer or general counsel of the Borrower in substantially the form of EXHIBIT D Exhibit F hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 8 and Section 9 hereof(if applicable) reconciliations to reflect changes in GAAP since December 31, 2004;
(d) promptly after the same are available, copies of each annual report, proxy, if any, or financial statement or other report or communication sent to the holders of Equity Securities of the Borrower who are not Affiliates of the Borrower, and copies of all annual, interim and current reports and any other report of a material nature (it being understood that filings in the ordinary course of business pursuant to Sections 13(d), (f) and (g) of the Securities Exchange Act of 1934 are not material) 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 Administrative Agent pursuant hereto; and
(e) from time to time such other financial data and information (including accountants’ management letters) as the Administrative Agent (having been requested to do so by any Bank) may reasonably request.
(f) Documents required to be delivered pursuant to Section 6.4(a), (b), (c) or (d) (to the extent any such financial statements, reports or proxy statements are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s internet website at xxx.xxxxxxxxxxxxxxx.xxx or such other replacement website of which the Borrower has given proper notice to the Administrative Agent and each Bank; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or another relevant website, if any, to which each Bank and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent, a copy ); provided that: (i) the Borrower shall deliver paper copies of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted such documents to the Borrower, MCRC, Administrative Agent or any other Guarantor or any of their respective subsidiaries Bank who requests, in writing, the Borrower to deliver such paper copies until written request to cease delivering paper copies is given by the Accountants in connection with Administrative Agent or such Bank and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent and each annual audit Bank of the books posting of any such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Borrowercertificates or statements of officers required by Section 6.4(a), MCRC(b) or (c)to the Administrative Agent. Except for such certificates or statements of officers, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any other Guarantor or such subsidiary event shall have no responsibility to monitor compliance by such Accountants or in connection the Borrower with any interim audit thereof pertaining such request for delivery, and each Bank shall be solely responsible for requesting delivery to any phase it or maintaining its copies of the business of the Borrower, MCRC or any other Guarantor or any such subsidiary;documents.
Appears in 1 contract
Samples: Revolving Credit Agreement (Alliancebernstein Holding L.P.)
Financial Statements, Certificates and Information. The Borrower -------------------------------------------------- will deliver and will or cause MCRC to deliver be delivered to the Administrative AgentLender:
(a) as 8.4.1. As soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP and its subsidiaries the Borrower at the end of such year, and the related audited consolidated statements statement of operationsincome, owner's equity (deficit) statement of retained earnings and statement of cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each 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 GAAPgenerally accepted accounting principles, and, in each case, and accompanied by an auditor's report prepared without qualification by an independent certified public accountant acceptable to the AccountantsLender;
(b) as 8.4.2. As soon as practicable, but in any event not later than forty-forty- five (45) days after the end of each of its the first three (3) fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP and its subsidiaries the Borrower as at the end of such quarter, and the related unaudited consolidated statements statement of operationsincome, owner's equity (deficit) statement of retained earnings and statement of cash flows for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) and its subsidiaries Borrower on the date thereof (subject to year-end adjustments);
(c) simultaneously 8.4.3. Contemporaneously with the delivery of the financial statements referred to in subsections (a) (subsection 841 above, a statement of all contingent liabilities of the Borrower which are not reflected in such financial statements or referred to in the notes thereto, and a statement of projected cash flows of the Borrower for the fourth current fiscal quarter year, all in reasonable detail and certified by the principal financial or accounting officer of the Borrower;
8.4.4. Contemporaneously with mailing thereof, copies of all material of a financial nature sent to the stockholders of the Borrower;
8.4.5. As soon as practicable, but in any event not later than one hundred and twenty (120) days after the end of each fiscal year) above and (b) (year of the Property, the operating statement for the first three Property at the end of such year, and the related statement of income for such year, each setting forth in comparative form the figures for the previous fiscal quarters of each fiscal year)year and all such statements to be in reasonable detail, a statement prepared in the form of EXHIBIT D hereto signed accordance with generally accepted accounting principles, prepared without qualification by the Borrower's chief financial officer or vice president by an independent certified public accountant acceptable to the Lender;
8.4.6. As soon as practicable, but in any event not later than forty- five (45) days after the end of finance each of the MCRLP or MCRCfirst three (3) fiscal quarters of the Property for any fiscal year, as applicablethe operating statement for the Property at the end of such quarter, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Daterelated statement of income for such quarter, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail computations evidencing compliance detail, prepared in accordance with generally accepted accounting principles, prepared without qualification by Borrower's chief financial officer or by an independent certified public accountant acceptable to the covenants contained in Section 8.7 and Section 9 hereofLender;
8.4.7. Within thirty (d30) promptly days following the end of each calendar year, and from time to time as Lender shall reasonably request, but no more frequently than quarterly, Guarantor's audited balance sheet and profit and loss statement prepared in accordance with generally accepted accounting principles consistently applied;
8.4.8. Within thirty (30) days after the due date therefore, if requested by the Administrative AgentLender, a copy copies of each report Guarantor's state and federal tax returns;
8.4.9. From time to time such other financial data and information (including any so-called letters of reportable conditions or letters of no material weaknessaccountants' management letters) submitted to as the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Lender may reasonably request.
Appears in 1 contract
Samples: Loan Agreement (Jameson Inns Inc)
Financial Statements, Certificates and Information. The Borrower Borrowers will deliver and will cause MCRC to deliver to the Administrative AgentLenders:
(a) as soon as practicable, but but, in any event not later than ninety (90) 90 days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedParent, the audited consolidated and consolidating balance sheet sheets of MCRLP and its subsidiaries the Parent as at the end of such year, statements of cash flows, 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 (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year and year, all such consolidated and consolidating financial statements to be in reasonable detail, prepared in accordance with GAAP, GAAP and, in each casewith respect to the consolidated financial statements, accompanied by an auditor's report prepared without qualification certified by the Accountants;
(b) as soon as practicable, but in any event not later than forty-five (45) 45 days after the end of each fiscal quarter of its first three (3) fiscal quarters:
(i) in the case of MCRLP, if preparedBorrowers, copies of the unaudited consolidated and consolidating balance sheet sheets and statement of MCRLP and its subsidiaries operations of the Parent as at the end of such quarter, the related unaudited consolidated statements of operations, owner's equity (deficit) and cash flows for the portion of MCRLP's fiscal subject to year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarteradjustments, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements statement of cash flow and stockholders' equity) provided by MCRC; flows, all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, each Borrower (the "CFO") that the information contained in such consolidated financial statements are prepared in accordance with GAAP and fairly presents present the consolidated financial position condition of MCRLP or MCRC (the Borrowers as at the case may be) and its subsidiaries 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 subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT Exhibit D hereto signed (the "Compliance Certificate") certified by the chief financial officer or vice president of finance CFO that the Borrowers are in compliance with the covenants contained in ss.ss.7, 8 and 9 hereof, as of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since end of the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, period and setting forth in reasonable detail computations evidencing compliance such compliance, provided that if the Borrowers shall at the time of issuance of such certificate 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 a certificate specifying the nature and period of existence thereof and what action the Borrowers propose to take with the covenants contained in Section 8.7 and Section 9 hereofrespect thereto;
(d) promptly if annually or at such other time as may be requested by the Administrative Agent, a copy copies of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted 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 Borrower, MCRCboards of directors of the Borrowers;
(e) contemporaneously with, or any other Guarantor promptly following, the filing or any mailing thereof, copies of their respective subsidiaries by all material of a financial nature filed with the Accountants in connection with each annual audit SEC or sent to the stockholders of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Borrowers; and
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Nationsrent Inc)
Financial Statements, Certificates and Information. The Borrower -------------------------------------------------- will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal yearsthe Borrower, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP the Borrower and each of its subsidiaries Restricted Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared and certified without qualification by KPMG Peat Marwick LLP or by other independent certified public accountants satisfactory to the AccountantsAgent, and (ii) the unaudited consolidated balance sheets of (A) the Borrower and each of its Subsidiaries as at the end of such year, and (B) the Borrower and each of its Restricted Subsidiaries, and the related unaudited consolidated statements of income, each setting forth in comparative form the figures for the previous fiscal year and all such consolidated statements to be in reasonable detail, prepared by management in accordance with the past financial practice of the Borrower and such Subsidiaries and with a certification by the principal financial or accounting officer of the Borrower that such financial statements fairly present the financial condition of the Borrower and such Subsidiaries on the date thereof and the results of operations of the Borrower and such Subsidiaries for the period covered thereby;
(b) as soon as practicable, but in any event not later than forty-forty- five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet sheets of MCRLP (i) the Borrower and its subsidiaries Subsidiaries, and (ii) the Borrower and its Restricted Subsidiaries, each as at the end of such quarter, and the related unaudited consolidated statements of operations, owner's equity (deficit) income and consolidated statements of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP generally accepted accounting principles (except for provisions for footnotes, reserves, accruals and year-end adjustments), and in each case together with a certification by the principal financial or accounting officer of the Borrower that such financial statements fairly present the financial condition of the Borrower and such Subsidiaries on the same basis date thereof (subject to the foregoing) and the results of operations of the Borrower and such Subsidiaries for the period covered thereby;
(c) as used soon as practicable, but in preparation any event within thirty (30) days after the end of MCRC's Form 10each 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 (except for provisions for footnotes, reserves, accruals and year-Q statements filed with the SECend adjustments), together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents present the financial position condition of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments)the foregoing) and the results of operations of the Borrower and its Subsidiaries for the period covered thereby;
(cd) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit I (the "Compliance Certificate") hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting ------- - forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 (S)11 and Section 9 hereof(if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(di) promptly if requested by as soon as practicable, but in any event within fifteen (15) days of the Administrative end of each calendar month, a Borrowing Base Report setting forth the Borrowing Base with Eligible Accounts Receivable calculated as at the end of such calendar month and Eligible Inventory calculated as at the end of the immediately preceding calendar month; and (ii) as soon as practicable, but in any event within (30) days of the end of each calendar month, a Borrowing Base Report setting forth the Borrowing Base calculated with both Eligible Accounts Receivable and Eligible Inventory as at the end of such calendar month;
(f) upon the request of the Agent, an Accounts Receivable aging report;
(g) within ten (10) days of the filing or mailing thereof, copies of all material of a copy financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Borrower;
(h) not later than thirty (30) days after the beginning of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books fiscal year of the Borrower, MCRCprojections and budgets of the Borrower and its Subsidiaries for the upcoming fiscal year;
(i) contemporaneously with the delivery thereof, copies of all accountants' management letters delivered to the Borrower or any of its Subsidiaries;
(j) within ten (10) days of a request, such other Guarantor financial data and information as the Agent may reasonably request or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase Bank may reasonably request of the business of the Borrower, MCRC or any other Guarantor or any such subsidiary;Agent; and
Appears in 1 contract
Samples: Revolving Credit and Acquisition Loan Agreement (Jackson Products Inc)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative Agent:
Banks: (a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries at Subsidiaries as of the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared and certified without qualification by KPMG Peat Marwick or by any of the Accountants;
other so- called "big five" accounting firms, 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 forty-five sixty (4560) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at of the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
; (c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT Exhibit D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 10 and Section 9 hereof(if applicable) reconciliations to reflect changes in generally accepted accounting principles since the Balance Sheet Date;
(d) promptly if requested by the Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;
Appears in 1 contract
Samples: Revolving Credit Agreement (Rollins Truck Leasing Corp)
Financial Statements, Certificates and Information. The Borrower will deliver to the Administrative Agent (and the Administrative Agent will cause MCRC to promptly, after receipt thereof, deliver to the Administrative Agent:Lenders):
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal yearsthe Borrower, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, in each case, accompanied by an auditor's report prepared 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 AccountantsAdministrative Agent and (ii) a statement certified by the chief financial officer or the treasurer of the Borrower in substantially the form of Exhibit C hereto (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the covenants contained in §7 hereof 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 forty-five (45) days after the end of each of its the first three (3) fiscal quarters:
quarters of each fiscal year of the Borrower, (i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows for the portion of MCRLP's the Borrower’s fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief financial officer or vice president the treasurer of finance the Borrower that to the best of MCRLP or MCRCthe Borrower’s knowledge, as applicable, that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments)) and (ii) a Compliance Certificate as of such fiscal quarter end;
(c) simultaneously from time to time such other financial data and information as the Administrative Agent or any Lender may reasonably request;
(i) promptly upon becoming aware of the occurrence of any actual or 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 information with respect thereto as the Administrative Agent shall reasonably request;
(e) 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 Borrower, 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 delivery Securities Exchange Commission under Section 13 or 15(d) of the financial statements referred Securities Exchange Act of 1934, and not otherwise required to in subsections be delivered to the Administrative Agent pursuant hereto; and
(af) (for promptly after the fourth fiscal quarter same are available, copies of each fiscal yearof the Offer Documents. 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 §26 hereof. Documents required to be delivered pursuant to this §5.4 (to the extent any such documents are included in materials otherwise filed with the SEC) above 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; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent 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 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 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 documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper copies of the Compliance Certificates required by §§5.4(a) and (b) hereof to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (for i) the Administrative Agent and/or the Arranger will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on 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 the Borrower or its securities) (each, a “Public Lender”). The Borrower hereby agrees that (A) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” by the Borrower which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first three fiscal quarters of each fiscal year), a statement in page thereof; (B) by marking Borrower Materials “PUBLIC,” the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations Borrower shall be deemed to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by have authorized the Administrative Agent, a copy of each report (including the Arranger and the Lenders to treat such Borrower Materials as not containing any somaterial non-called letters of reportable conditions or letters of no material weakness) submitted public information with respect to the BorrowerBorrower or its securities for purposes of United States Federal and state securities laws (provided, MCRChowever, or any other Guarantor or any of their respective subsidiaries by (x) to the Accountants extent such Borrower Materials constitute Confidential Information, they shall be treated as set forth in connection with each annual audit §26 hereof and (y) to the extent such Borrower Materials are not marked “PUBLIC” and posted on the Platform, such Borrower Materials will also be subject to the additional confidentiality provisions included on the Platform); (C) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the books Platform designated “Public Investor;” and (D) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the BorrowerPlatform not designated “Public Investor” and the Administrative Agent and the Lenders agree not to trade securities on the basis of any Borrower Materials that are posted on the Platform and are not marked “PUBLIC.” Notwithstanding the foregoing, MCRC, or the Borrower shall be under no obligation to xxxx 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, MCRC or any other Guarantor or any such subsidiary;Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Credit Agreement (Staples Inc)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to the Administrative AgentAgent and each Secured Party:
(a) as soon as practicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP (i) the Borrower and (ii) CAI and its subsidiaries Subsidiaries, in each case, as at the end of such year, and the related audited consolidated statements and consolidating statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, andaudited and certified, in each case, accompanied by an auditor's report prepared without qualification and without an expression of uncertainty as to the ability of the Borrower or CAI, as the case may be, to continue as going concerns, by Deloitte, LLP, KPMG, LLP or other independent certified public accountants reasonably satisfactory to the AccountantsAdministrative Agent;
(b) as soon as practicable, but in any event not later than forty-five sixty (4560) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower and CAI, copies of the unaudited consolidated balance sheet of MCRLP (i) the Borrower and (ii) CAI and its subsidiaries Subsidiaries, in each case as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLP's the Borrower’s or CAI’s, as the case may be, fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer of the Borrower or vice president of finance of MCRLP or MCRCCAI, as applicablethe case may be, that the information contained in such financial statements fairly presents in all material respects the financial position of MCRLP the Borrower or MCRC (CAI and its Subsidiaries, as the case may be) and its subsidiaries , on the date thereof (subject to normal year-end adjustmentsadjustments made in accordance with GAAP and the absence of footnotes);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) above, (for the first three fiscal quarters of each fiscal year), i) a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT Exhibit D hereto signed (a “Compliance Certificate”), (ii) end of period utilization rates and per diem rental rate information with respect to all Containers in the Borrower Fleet, (iii) the number and types of Containers in the Borrower Fleet and the aggregate Net Book Value and Original Equipment Cost of all Containers in the Borrower Fleet, (iv) the identity of the Person appointed by the chief financial officer or vice president of finance of Borrower as agent with respect to the MCRLP or MCRC, as applicableBorrower’s accounts receivable, and (if applicablev) reconciliations a status report regarding any Defaulted Lease and the recovery of any equipment subject to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; anda Defaulted Lease, in each case at the end of such fiscal quarter or year, as the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereofmay be;
(d) promptly if contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed by CAI or any of its Subsidiaries with the Securities and Exchange Commission;
(e) on each Determination Date and (ii) at least five (5) Business Days prior to the date of any removal or sale of any assets not made in the ordinary course of business from the Borrowing Base, a Borrowing Base Report setting forth the Borrowing Base as at the end of such calendar month, sale date or other date so requested by the Administrative Agent, a copy of each report .
(f) from time to time such other financial data and information (including accountants’ management letters) as any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, Agent or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Lender may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower -------------------------------------------------- will deliver and will cause MCRC to deliver to each of the Administrative AgentBanks:
(a) as soon as practicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operationsincome, owner's equity (deficit) and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow flow, and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case consolidated statement of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of shareholders' equity for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared and certified without qualification by independent certified public accountants satisfactory to the AccountantsAgent;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D Exhibit F hereto signed by and setting forth in reasonable detail computations --------- evidencing compliance with the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, covenants contained in (S)8 and (if applicable) reconciliations to reflect changes in GAAP generally accepted accounting principles since the applicable Financial Statement Balance Sheet Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by upon the Administrative Agentmailing or filing thereof, a copy copies of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted all financial statements, reports and proxy statements mailed to the Borrower, MCRC, 's public shareholders or filed with the Securities and Exchange Commission (or any other Guarantor successor thereto) or any national securities exchange, including without limitation copies of their respective subsidiaries by all registration statements and Forms 10-K, 10-Q and 8-K, and amendments thereto; and
(e) from time to time such other financial data and information (including accountants' management letters) as the Accountants in connection with each annual audit of the books of the Borrower, MCRC, Agent 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, MCRC or any other Guarantor or any such subsidiary;Bank may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower Credit Parties will deliver and will cause MCRC to deliver to the Administrative AgentAgent and the Term Lenders:
(a) as soon as practicable, but in any event not no later than ninety (90) days after the end of each of its fiscal yearsFiscal Year, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP Intersections and its subsidiaries Subsidiaries, as at the end of such yearFiscal Year, and the related audited consolidated statements of income or operations, owner's cash flows, and shareholders’ equity (deficit) and cash flows for the year then endedsuch Fiscal Year, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year Fiscal Year and all such consolidated financial statements to be in reasonable detail, prepared in accordance with GAAP, and, in each case, GAAP consistently applied and such consolidated financial statements to be audited and accompanied by an auditor's a report and opinion prepared in accordance with 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 Intersections and its Subsidiaries to continue as going concerns, and (ii) a Compliance Certificate duly executed by a Financial Officer of Intersections, which, among other things, (A) attaches and certifies to the Accountantsforegoing consolidated financial statements, accountants statements, management letters and a management discussion and analysis prepared in connection with such financial statements, (B) certifies that the information contained in such consolidating financial statements fairly presents in all material respects the financial condition of the Intersections and its Subsidiaries on the dates indicated therein, (C) appends calculations of the financial covenants set forth in Section 7.12 during such Fiscal Year and to the extent applicable, and specifying whether Intersections and its Subsidiaries have complied with Section 7.12, 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 forty-five (45) days after the end of each Fiscal Quarter (commencing with the Fiscal Quarter ending March 31, 2017 and including the last Fiscal Quarter of its first three (3) fiscal quarters:
each Fiscal Year), (i) in the case of MCRLP, if prepared, copies of the unaudited quarterly consolidated and consolidating (to the extent specified below) financial statements of Intersections and its Subsidiaries for such Fiscal Quarter, including the consolidated and consolidating balance sheet of MCRLP Intersections and its subsidiaries Subsidiaries, as at the end of such quarterFiscal Quarter, the related unaudited consolidated statements and consolidating statement of income or operations, owner's equity (deficit) and the related consolidated statement of cash flows for such Fiscal Quarter and for the portion of MCRLP's fiscal year the Fiscal Year then elapsedended, with supplemental consolidating schedules (except with respect to each such financial statements of cash flow and owner's equity) provided by MCRLP; and
(ii) setting forth in comparative form the case of MCRC, copies figures for the corresponding Fiscal Quarter of the unaudited consolidated balance sheet of MCRC previous Fiscal Year and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the corresponding portion of MCRC's fiscal year then elapsedthe previous Fiscal Year, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and each, prepared in accordance with GAAP on consistently applied and (ii) a Compliance Certificate duly executed by a Financial Officer of Intersections, which, among other things, (A) attaches and certifies to the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECforegoing financial statements, together with a certification by the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, (B) certifies that the information contained in such financial statements fairly presents in all material respects the financial position condition of MCRLP or MCRC (as the case may be) Intersections and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustmentsadjustments and the absence of footnotes);
, (C) sets forth in comparative form the results for and through such Fiscal Quarter with the most recent projections delivered to the Administrative Agent pursuant to Section 6.04(d), (D) appends calculations of the financial covenants set forth in Section 7.12(a) through (c) simultaneously with for Intersections and its Subsidiaries for the delivery Reference Period ended as of the financial statements referred to in subsections (a) (last day of such Fiscal Quarter or for the fourth fiscal quarter relevant period of each fiscal yeardetermination, specifying whether Intersections and its Subsidiaries have complied with Section 7.12(a) above and through (b) (for the first three fiscal quarters of each fiscal yearc), a statement in the form of EXHIBIT D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (E) sets forth (if applicable) reconciliations to reflect changes in GAAP since the applicable date of the last audited financial statements of Intersections and its Subsidiaries, and (F) states that such Financial Statement DateOfficer 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 to the Administrative Agent’s reasonable satisfaction;
(c) as soon as practicable, but only in any event no later than thirty (30) days after the end of each Fiscal Month (excluding the last Fiscal Month of each Fiscal Year, which shall be provided no later than forty-five (45) days after the end of such Fiscal Quarter), (i) the unaudited monthly consolidated and consolidating (to the extent that specified below) financial statements of Intersections and its Subsidiaries for such changes Fiscal Month, including the consolidated and consolidating balance sheet of Intersections and its Subsidiaries, as at the end of such Fiscal Month, the related consolidated and consolidating statement of income or operations, and the related consolidated statement of cash flows for such Fiscal Month and for the portion of the Fiscal Year then ended, each such financial statements 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 affect consistently applied (subject to year-end adjustments and the absence of footnotes) and (ii) a Compliance Certificate duly executed by a Financial Officer of Intersections attaching calculations of the financial covenants covenant set forth in Section 9 hereof; and7.12(a), and in form and substance acceptable to the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;Administrative Agent.
(d) promptly if as soon as practicable, but in any event no later than forty-five (45) days after the end of (i) each of the first three Fiscal Quarters of each Fiscal Year, a management discussion and analysis prepared in connection with the financial statements of Intersections and its Subsidiaries for such Fiscal Quarter and (ii) the last Fiscal Quarter of each Fiscal Year, a preliminary report regarding operations and performance for such Fiscal Quarter;
(e) as soon as practicable, but in any event no later than ninety (90) days after the end of each Fiscal Year, a certificate duly executed by a Financial Officer certifying that the Credit Parties have materially complied at all times with the CFPB Consent Order or the CFPB Compliance Plan;
(f) by not later than the last day of each Fiscal Year, a draft of an annual business plan and projections for Intersections and its Subsidiaries for the following Fiscal Year on a monthly basis (such projections to include consolidated and consolidating balance sheets, statements of cash flows, statements of income or operations of Intersections and its Subsidiaries, in each case prepared on a month-by-month basis and such other matters reasonably requested by the Administrative Agent) and by no later than sixty (60) days after the end of each fiscal year, a final copy of each report such annual business plan and projections, reflecting the same scope of information and level of detail contained in the draft business plan and projections previously delivered, approved by the board of directors of Intersections;
(including g) promptly upon receipt thereof, copies of any so-called detailed audit reports, regulatory audits, financial control reports, management letters of reportable conditions or letters of no material weakness) recommendations submitted to the Borrower, MCRC, board of directors (or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit committee of the books board of directors) of the Borrower, MCRC, Credit Parties by independent accountants or any other Guarantor or such subsidiary by such Accountants or internal auditors in connection with any interim audit of any of them;
(h) immediately, and in any event within five (5) Business Days after receipt by a member of Senior Management thereof pertaining to by any phase Credit Party or any Subsidiary thereof, copies of each notice or other correspondence received from any Governmental Authority concerning any investigation or possible investigation or other inquiry by such agency;
(i) promptly following the reasonable request of the business Administrative Agent, a report summarizing the insurance coverage in effect for each Credit Party and promptly following the modification, renewal, replacement of any insurance policy of any Credit Party, updated insurance certificates and endorsements evidencing such coverage;
(j) promptly after the delivery or receipt thereof, copies of all notices, reports and other communications delivered or received by any Credit Party in connection with the Subordinated Debt Documents;
(k) 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 BorrowerCredit Parties), MCRC updated Schedules 5.07, 5.08, 5.17, 5.18, 5.20 and Schedule 6 to the Perfection Certificate and in substantially the same form as the most recent schedule of the same delivered to the Administrative Agent to the Administrative Agent’s reasonable satisfaction; and
(l) promptly following a request therefor, from time to time such other financial data and information as the Administrative Agent or any other Guarantor or Term Lender may reasonably request. Documents required to be delivered pursuant to the terms of this Agreement (to the extent any such subsidiary;documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Intersections posts such documents, or provides a link thereto, on Intersections’ website on the Internet at Intersections’ website address; provided, however, Intersections shall promptly notify the Administrative Agent in writing (which may be by Electronic Medium) of the posting of any such documents.
Appears in 1 contract
Samples: Credit Agreement (Intersections Inc)
Financial Statements, Certificates and Information. The Borrower Borrowers will deliver to each of the Agent and will cause MCRC to deliver to the Administrative AgentLenders:
(a) as soon as practicable, but in any event not later than ninety one hundred (90100) days after the end of each fiscal year of its fiscal yearsZale, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP Zale and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures as of the end of and for the previous fiscal year and year, all such consolidated statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, and, in and each case, accompanied by an auditor's report prepared of such financial statements certified without qualification by Arthxx Xxxexxxx XXX or by another "big six" accounting firm or by other independent certified public accountants reasonably satisfactory to the AccountantsAgent, and (ii) the annual 10-K reports of Zale filed with the Securities and Exchange Commission;
(b) as soon as practicable, but in any event not later than forty-five fifty (4550) days after the end of each of its the first three (3) fiscal quarters:
quarters of each fiscal year of Zale, (i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP Zale and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income for such quarter and cash flows for the portion of MCRLPZale's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements and the related consolidated statement of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRCZale's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with (ii) a certification by a Senior Officer of each of the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, Borrowers that the information contained in such management financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Zale and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments), (iii) a narrative discussion of the operating results of the Borrowers and each of their divisions for the fiscal quarter most recently ended and the year to date, as compared with the comparable period of the previous year, and of the Borrowers' liquidity and capital resources at the end of such period, and (iv) the quarterly 10-Q reports of Zale filed with the Securities and Exchange Commission;
(c) as soon as practicable, but in any event within thirty (30) days after the end of each fiscal month which is not the last month of a fiscal quarter of Zale, (i) unaudited monthly consolidated balance sheet of Zale and its Subsidiaries as at the end of such fiscal month, and the related consolidated statement of income for such fiscal month and for the portion of Zale's fiscal year then elapsed, each prepared by management of Zale on a basis consistent with its method of preparing management financial statements, and (ii) a certification by a Senior Officer of each of the Borrowers that the information contained in such management financial statements fairly presents in all 62 -56- material respects the financial condition of Zale and its Subsidiaries on the date thereof (subject to quarterly and year-end adjustments);
(i) simultaneously with the delivery of the management prepared financial statements referred to in subsections (b) and (c) above, a variance report comparing, for each period (including the portion of the fiscal year to date) covered by such financial statements, such financial statements with (A) the annual budget of the Borrowers, and (B) the financial statements of the Borrowers for the comparable date or period during the prior fiscal year of the Borrowers, and (ii) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by a Senior Officer of each of the Borrowers in substantially the form of EXHIBIT Exhibit D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 9 (and including calculations with respect to the financial information required by Section 9 hereof5.14 in connection with possible Performance Adjustments) and (if applicable) reconciliations to reflect material changes in generally accepted accounting principles since the Balance Sheet Date;
(de) promptly if requested within ten (10) Business Days after the filing or mailing thereof, copies of all material reports of a financial nature filed by either of the Administrative AgentBorrowers with the Securities and Exchange Commission or sent to the stockholders of Zale (other than the annual 10-K reports and the quarterly 10-Q reports of Zale delivered pursuant to Sections 7.4(a) and (b), a copy respectively);
(f) to the Agent within thirty (30) days after the end of each report fiscal month (including any so-called letters except that the Settlement Statement for the last fiscal month of reportable conditions a fiscal quarter or letters fiscal year of no material weaknessthe Borrowers may be delivered simultaneously with the delivery of the financial statements referred to in subsections (a) submitted and (b) above), the monthly "Settlement Statement" of ZFT (the "Settlement Statement") for the immediately preceding fiscal month, prepared in accordance with the requirements of the Receivables Facility Documents and such other information with respect to the Borrower, MCRC, or any other Guarantor or any purchase and sale of their respective subsidiaries by ZFT Receivables pursuant to the Accountants Receivables Facility Documents as the Agent shall request in connection with each annual audit the exercise of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiaryits reasonable discretion;
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver to the Agent and the Agent will cause MCRC to then deliver to the Administrative AgentBanks:
(a) as soon as practicableavailable, but in any event not later than ninety five (9095) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries, each as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRCflow, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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 GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared and certified without qualification (except that a qualification for a change in accounting principles with which such firm of independent certified public accountants concurs shall be permitted) by Ernst & Young L.L.P. or by other independent certified public accountants reasonably satisfactory to the AccountantsAgent;
(b) as soon as practicableavailable, but in any event not later than forty-five fifty (4550) days after the end of each of its the first three (3) fiscal quarters:
(i) quarters in each fiscal year of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by a financial officer, vice president-finance, vice president-accounting, treasurer or controller of the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by a financial officer, vice president-finance, vice president-accounting, treasurer or controller of the Borrower in substantially the form of EXHIBIT D F hereto signed by (a "Compliance Certificate") and setting forth in reasonable detail computations evidencing compliance with (i) the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, covenants contained in Section 10 and (if applicable) reconciliations to reflect changes in GAAP generally accepted accounting principles since the applicable Financial Statement DateBalance Sheet Date and (ii) if the Total Commitment exceeds $100,000,000, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case evidence of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 provisions of the Senior Notes restricting the amount of Indebtedness the Borrower and Section 9 hereofits Subsidiaries may incur;
(d) promptly if requested by as soon as practicable but in any event, within (20) Business Days after the Administrative Agentfiling or mailing thereof, a copy copies of each report all financial statements filed with the Securities and Exchange Commission or sent to the stockholders of the Borrower as such;
(e) from time to time such other financial data and information (including any so-called letters of reportable conditions or letters of no material weaknessinformation relating to Guaranteed Pension Plans and accountants' management letters) submitted to as the Borrower, MCRC, Agent or any other Guarantor or Bank may reasonably request; and
(f) as soon as available, but in any of their respective subsidiaries by event not later than sixty (60) days following the Accountants in connection with each annual audit delivery of the books financial statements referred to in clause (a) above or at any other time at which the Borrower shall desire to submit such updated projections, consolidated projections of the Borrower, MCRC, or any other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining Borrower and its Subsidiaries updating those projections delivered pursuant to any phase of the business of the Borrower, MCRC or any other Guarantor or any such subsidiary;this Section 8.4(f).
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower Borrowers will deliver to each of the Lenders and will cause MCRC to deliver to the Administrative Agent:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrowers, the audited consolidated balance sheet of MCRLP MSSR and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, andand certified, in each case, accompanied by an auditor's report prepared without qualification and without an expression of uncertainty as to the ability of MSSR or any of its Subsidiaries to continue as going concerns, by PricewaterhouseCoopers, any other nationally recognized accounting firm, or by other independent certified public accountants reasonably satisfactory to the AccountantsRequired Lenders;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrowers, copies of the unaudited consolidated balance sheet of MCRLP MSSR and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for such fiscal quarter and the portion of MCRLP's such Persons’ fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) setting forth in each case in comparative form the case of MCRC, copies figures for the corresponding period or periods of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's previous fiscal year then elapsedand the comparisons to projections for such period, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10(subject to year-Q statements filed with the SECend adjustments and footnote information required by GAAP), together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, MSSR that the information contained in such financial statements fairly presents in all material respects the financial position of MCRLP or MCRC (as the case may be) MSSR and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustmentsadjustments and footnote information required by GAAP);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of the Borrowers in substantially the form of EXHIBIT D Exhibit C hereto signed by (a “Compliance Certificate”) and setting forth in reasonable detail computations evidencing compliance with the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, covenants contained in § 11 and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Balance Sheet Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or, sent to the equity holders of any Borrower or any Guarantor;
(e) within sixty (60) days after the beginning of each fiscal year of the Borrowers and, if requested 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 (balance sheet, income statement and cash flow statement) of the Borrowers and their Subsidiaries organized for the next fiscal year on a 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(e) and simultaneously therewith updated Schedules 8.19 and 8.22, which Schedules shall be correct and complete as of the date delivered to the Administrative Agent;
(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. Documents required to be delivered pursuant to § 9.4(a) or § 9.4(b) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrowers post such documents, or provides a link thereto on the Borrowers’ website on the Internet at the website address listed on Schedule 17.8; 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: (a) 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 (b) 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 § 9.4 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 Arranger will make available to the Lenders materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a copy of each report (including any so“Public Lender”) may have personnel who do not wish to receive material non-called letters of reportable conditions or letters of no material weakness) submitted public information with respect to the Borrower, MCRCBorrowers or their Affiliates, or any other Guarantor 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 Borrowers hereby agree that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective subsidiaries by securities for purposes of United States Federal and state securities laws (provided, however, that to the Accountants extent such Borrower Materials constitute Information, they shall be treated as set forth in connection with each annual audit § 17.5); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the books Platform designated “Public Investor;” and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Platform not designated “Public Investor.”
Appears in 1 contract
Samples: Revolving Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.)
Financial Statements, Certificates and Information. The Borrower Credit Parties will deliver and will cause MCRC to deliver to the Administrative AgentAgent and the Term Lenders:
(a) as soon as practicable, but in any event not no later than ninety (90) days after the end of each of its fiscal yearsFiscal Year, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP Intersections and its subsidiaries Subsidiaries, as at the end of such yearFiscal Year, and the related audited consolidated statements of income or operations, owner's cash flows, and shareholders’ equity (deficit) and cash flows for the year then endedsuch Fiscal Year, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year Fiscal Year and all such consolidated financial statements to be in reasonable detail, prepared in accordance with GAAP, and, in each case, GAAP consistently applied and such consolidated financial statements to be audited and accompanied by an auditor's a report and opinion prepared in accordance with 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 Intersections and its Subsidiaries to continue as going concerns, and (ii) a Compliance Certificate duly executed by a Financial Officer of Intersections, which, among other things, (A) attaches and certifies to the Accountantsforegoing consolidated financial statements, accountants statements, management letters and a management discussion and analysis prepared in connection with such financial statements, (B) certifies that the information contained in such consolidating financial statements fairly presents in all material respects the financial condition of the Intersections and its Subsidiaries on the dates indicated therein, (C) appends calculations of the financial covenants set forth in Section 7.12 during such Fiscal Year and to the extent applicable, and specifying whether Intersections and its Subsidiaries have complied with Section 7.12, (D) includes a report as to Churn during such Fiscal Year (identifying the number of new subscribers and discontinued subscribers for each Fiscal Month, and the initial number of subscribers for the following Fiscal Month), (E) includes the consolidated balance sheet of the Core Business as at the end of such Fiscal Year and the related consolidated statements of income or operations and statement of cash flows for such Fiscal Year, each setting forth in comparative form the figures for the previous Fiscal Year for the Core Business and prepared in accordance with GAAP consistently applied (subject to the absence of footnotes) and (F) 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 forty-five (45) days after the end of each Fiscal Quarter (including the last Fiscal Quarter of its first three (3) fiscal quarters:
each Fiscal Year), (i) in the case of MCRLP, if prepared, copies of the unaudited quarterly consolidated and consolidating (to the extent specified below) financial statements of Intersections and its Subsidiaries for such Fiscal Quarter, including the consolidated and consolidating balance sheet of MCRLP Intersections and its subsidiaries Subsidiaries, as at the end of such quarterFiscal Quarter, the related consolidated and consolidating statement of income or operations, and the related consolidated statement of cash flows for such Fiscal Quarter and for the portion of the Fiscal Year then ended, the unaudited quarterly statement of cash flows for i4c for such Fiscal Quarter and for the portion of the Fiscal Year then ended, the unaudited consolidated statements quarterly statement of operations, owner's equity (deficit) and cash flows for the portion of MCRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow Core Business for such Fiscal Quarter and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year the Fiscal DB1/ 85911004.13 Year then elapsedended, with supplemental consolidating schedules (except with respect to each such financial statements setting forth in comparative form the figures for the corresponding Fiscal Quarter of cash flow the previous Fiscal Year and stockholders' equity) provided by MCRC; all in reasonable detail and the corresponding portion of the previous Fiscal Year, each, prepared in accordance with GAAP on consistently applied and (ii) a Compliance Certificate duly executed by a Financial Officer of Intersections, which, among other things, (A) attaches and certifies to the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECforegoing financial statements, together with a certification by the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, (B) certifies that the information contained in such financial statements fairly presents in all material respects the financial position condition of MCRLP or MCRC (as the case may be) Intersections and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustmentsadjustments and the absence of footnotes);
, (cC) simultaneously sets forth in comparative form the results for and through such Fiscal Quarter with the delivery most recent projections delivered to the Administrative Agent pursuant to Section 6.04(d), (D) appends calculations of the financial statements referred to covenants set forth in subsections Section 7.12(a) through (ad) (for Intersections and its Subsidiaries for the fourth fiscal quarter Reference Period ended as of each fiscal year) above and (b) (the last day of such Fiscal Quarter or for the first three fiscal quarters relevant period of each fiscal yeardetermination, specifying whether Intersections and its Subsidiaries have complied with Section 7.12(a) through (d), (E) includes a statement in report as to Churn during such Fiscal Quarter (identifying the form number of EXHIBIT D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicablenew subscribers and discontinued subscribers for each Fiscal Quarter, and the initial number of subscribers for the following Fiscal Quarter), (F) sets forth (if applicable) reconciliations to reflect changes in GAAP since the applicable date of the last audited financial statements of Intersections and its Subsidiaries, (G) includes the consolidated balance sheet of the Core Business as at the end of such Fiscal Quarter and the related consolidated statements of income or operations, for such Fiscal Quarter and for the portion of the Fiscal Year then ended, each setting forth in comparative form the figures for the corresponding Fiscal Quarter of the previous Fiscal Year for the Core Business and the corresponding portion of the previous Fiscal Year, each prepared in accordance with GAAP consistently applied (subject to year-end adjustments and the absence of footnotes) and (H) states that such Financial Statement DateOfficer 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 to the Administrative Agent’s reasonable satisfaction;
(c) as soon as practicable, but only in any event no later than thirty (30) days after the end of each Fiscal Month (including the last Fiscal Month of each Fiscal Year), (i) the unaudited monthly consolidated and consolidating (to the extent that specified below) financial statements of Intersections and its Subsidiaries for such changes Fiscal Month, including the consolidated and consolidating balance sheet of Intersections and its Subsidiaries, as at the end of such Fiscal Month, the related consolidated and consolidating statement of income or operations, the related consolidated statement of cash flows for such Fiscal Month and for the portion of the Fiscal Year then ended and the unaudited monthly statement of cash flows for i4c for such Fiscal Month and for the portion of the Fiscal Year then ended, and the unaudited consolidated monthly statement of cash flows for the Core Business for such Fiscal Month and for the portion of the Fiscal Year then ended, each such financial statements 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 affect consistently applied (subject to year-end adjustments and the absence of footnotes) and (ii) a Compliance Certificate duly executed by a Financial Officer of Intersections attaching calculations of DB1/ 85911004.13 the financial covenants covenant set forth in Section 9 hereof; and7.12(a), and in form and substance acceptable to the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;Administrative Agent.
(d) promptly if as soon as practicable, but in any event no later than forty-five (45) days after the end of (i) each of the first three Fiscal Quarters of each Fiscal Year, a management discussion and analysis prepared in connection with the financial statements of Intersections and its Subsidiaries for such Fiscal Quarter and (ii) the last Fiscal Quarter of each Fiscal Year, a preliminary report regarding operations and performance for such Fiscal Quarter;
(e) as soon as practicable, but in any event no later than ninety (90) days after the end of each Fiscal Year, a certificate duly executed by a Financial Officer certifying that the Credit Parties have materially complied at all times with the CFPB Consent Order or the CFPB Compliance Plan;
(f) by not later than the last day of each Fiscal Year, a draft of an annual business plan and projections for Intersections and its Subsidiaries for the following Fiscal Year on a monthly basis (such projections to include consolidated and consolidating balance sheets, statements of cash flows, statements of income or operations of Intersections and its Subsidiaries, in each case prepared on a month-by-month basis and such other matters reasonably requested by the Administrative Agent) and by no later than sixty (60) days after the end of each fiscal year, a final copy of each report such annual business plan and projections, reflecting the same scope of information and level of detail contained in the draft business plan and projections previously delivered, approved by the board of directors of Intersections;
(including g) promptly upon receipt thereof, copies of any so-called detailed audit reports, regulatory audits, financial control reports, management letters of reportable conditions or letters of no material weakness) recommendations submitted to the Borrower, MCRC, board of directors (or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit committee of the books board of directors) of the Borrower, MCRC, Credit Parties by independent accountants or any other Guarantor or such subsidiary by such Accountants or internal auditors in connection with any interim audit of any of them;
(h) immediately, and in any event within five (5) Business Days after receipt by a member of Senior Management thereof pertaining to by any phase Credit Party or any Subsidiary thereof, copies of each notice or other correspondence received from any Governmental Authority concerning any investigation or possible investigation or other inquiry by such agency;
(i) promptly following the reasonable request of the business Administrative Agent, a report summarizing the insurance coverage in effect for each Credit Party and promptly following the modification, renewal, replacement of any insurance policy of any Credit Party, updated insurance certificates and endorsements evidencing such coverage;
(j) promptly after the delivery or receipt thereof, copies of all notices, reports and other communications delivered or received by any Credit Party in connection with the Subordinated Debt Documents; DB1/ 85911004.13
(k) 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 BorrowerCredit Parties), MCRC updated Schedules 5.07, 5.08, 5.17, 5.18, 5.20 and Schedule 6 to the Perfection Certificate and in substantially the same form as the most recent schedule of the same delivered to the Administrative Agent to the Administrative Agent’s reasonable satisfaction; and
(l) promptly following a request therefor, from time to time such other financial data and information as the Administrative Agent or any other Guarantor or Term Lender may reasonably request. Documents required to be delivered pursuant to the terms of this Agreement (to the extent any such subsidiary;documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which Intersections posts such documents, or provides a link thereto, on Intersections’ website on the Internet at Intersections’ website address; provided, however, Intersections shall promptly notify the Administrative Agent in writing (which may be by Electronic Medium) of the posting of any such documents.
Appears in 1 contract
Samples: Credit Agreement (Intersections Inc)
Financial Statements, Certificates and Information. The Such Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentLenders:
(a) as soon as practicable, but in any event not later than ninety one hundred twenty (90120) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedCAI, the audited consolidated balance sheet of MCRLP CAI and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, andand certified, in each case, accompanied by an auditor's report prepared without qualification and without an expression of uncertainty as to the ability of CAI or any of its Subsidiaries to continue as going concerns, by KPMG LLP or by other independent certified public accountants satisfactory to the AccountantsAdministrative Agent;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its the first three (3) fiscal quarters:
(i) in the case quarters of MCRLP, if preparedeach fiscal year of CAI and its Subsidiaries, copies of the unaudited consolidated balance sheet of MCRLP CAI and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLP's CAI’s and its Subsidiaries fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, CAI that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) CAI and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) upon the reasonable request of the Administrative Agent, CAI shall provide consolidating financial statements of the type referred to in subsections (a) and (b) above for (i) each of CAI and CAI Barbados and (ii) the non-Guarantor Subsidiaries of CAI 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 CAI 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) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of CAI in substantially the form of EXHIBIT D ExhibitD hereto signed by (a "ComplianceCertificate") and setting forth in reasonable detail computations evidencing compliance with the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, covenants contained in §10 and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Balance Sheet Date;
(i) contemporaneously with the filing or mailing thereof, but only copies of all material of a financial nature filed with the Securities and Exchange Commission or with any national securities exchange or sent to the extent that stockholders of CAI or its 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 notice or other correspondence received from the Securities and Exchange Commission or any national securities exchange concerning any investigation or possible investigation or other inquiry by such changes in GAAP affect agency regarding any financial or other operational results of CAI or any of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect;
(f) within forty-five days (45) days of the financial covenants set forth in Section 9 hereof; end of each calendar month and, in any case, simultaneously with the case delivery of MCRLPa 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 in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 Borrowing Base and Section 9 hereof;
(d) promptly if the Domestic 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, a copy report listing (i) the aggregate number of Containers and (ii) the aggregate number of Chassis, in each report case, owned, rented, leased or managed by the such Borrower and its Subsidiaries, together with monthly utilization rate and per diem rental rate information with respect to the Containers and the Chassis in form and detail satisfactory to the Administrative Agent; and
(h) from time to time such other financial data and information (including accountants’ management letters) as the Administrative Agent or any so-called letters of reportable conditions or letters of no material weaknessLender may reasonably request. Each Borrower hereby acknowledges that (a) submitted the Administrative Agent and/or the Arranger will make available to the Borrower, MCRC, Lenders materials and/or information provided by or on behalf of any other Guarantor Borrower or any of their respective subsidiaries its Subsidiaries hereunder (collectively, “Borrower Materials”) by posting the Accountants in connection with each annual audit Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the books Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrowers or their securities) (each, a “Public Lender”). The Borrowers hereby agree that so long as the Borrowers are 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,” each Borrower shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuer, the Swing Line Lender and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in §16.4); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Borrower, MCRC, or Platform designated “Public Investor;” and (z) the Administrative Agent and the Arranger shall be entitled to treat any other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the business of Platform not designated “Public Investor.” Notwithstanding the Borrowerforegoing or anything to the contrary contained herein, MCRC or no Borrower shall be under any other Guarantor or obligation to xxxx any such subsidiary;Borrower Materials “PUBLIC.”
Appears in 1 contract
Samples: Revolving Credit Agreement (CAI International, Inc.)
Financial Statements, Certificates and Information. The Borrower will deliver and will cause MCRC to deliver to each of the Administrative AgentLenders:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrower, the audited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries and the consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case statement of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of income for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAP, andand certified, in each case, accompanied by an auditor's report prepared 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 Xxxxxx Xxxxxxxx LLP or by other independent certified public accountants satisfactory to the AccountantsAdministrative Agent;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet of MCRLP the Borrower and its subsidiaries Subsidiaries and the unaudited consolidating balance sheet of the Borrower and its Subsidiaries, each as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLPthe Borrower's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement certified by the principal financial or accounting officer of the Borrower in substantially the form of EXHIBIT D hereto signed by (a "COMPLIANCE CERTIFICATE") and setting forth in reasonable detail computations evidencing compliance with the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, covenants contained in ss.10 and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Balance Sheet Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by within forty five (45) days after the end of each fiscal quarter or at such earlier time as the Administrative AgentAgent or the Required Lenders may reasonably request, a copy of each an Accounts Receivable aging report (including any so-called letters of reportable conditions or letters of no material weakness) submitted in form acceptable to the BorrowerAdministrative Agent and the Required Lenders;
(e) contemporaneously with the filing or mailing thereof, MCRC, copies of all material of a financial nature filed with the Securities and Exchange Commission or any other Guarantor or any of their respective subsidiaries by sent to the Accountants in connection with each annual audit of the books stockholders of the Borrower;
(f) as soon as practicable, MCRCbut in any event not later than thirty (30) days prior to the beginning of the next fiscal year, or any such other Guarantor or such subsidiary by such Accountants or in connection with any interim audit thereof pertaining to any phase time upon request of the business Administrative Agent or the Required Lenders, projections of the BorrowerBorrower and its Subsidiaries updating those projections delivered to the Lenders and referred to in ss.7.4.3 or, MCRC if applicable, updating any later such projections delivered in response to a request pursuant to this ss.8.4(e); and
(g) from time to time such other financial data and information (including accountants, management letters) as the Administrative Agent or any other Guarantor or any such subsidiary;Lender may reasonably request.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower Borrowers will deliver and will cause MCRC to deliver to each of the Administrative AgentLenders:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each Fiscal Year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedBorrowers, the audited consolidated balance sheet of MCRLP BGI and its subsidiaries Subsidiaries as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; 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, andand certified, in each case, accompanied by an auditor's report prepared 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 Ernst & Young LLP or by other independent certified public accountants satisfactory to the AccountantsAdministrative Agent;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its the first three (3) fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrowers, copies of the unaudited consolidated balance sheet of MCRLP BGI and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow for the portion of MCRLP's the Borrowers’ fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECGAAP, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, BGI that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) BGI and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements referred to in subsections (a) and (for the fourth fiscal quarter of each fiscal yearb) above and (bi) (for below, and promptly on or before the first three fiscal quarters occurrence of each fiscal year)a Cash Dominion Event, a statement certified by the principal financial or accounting officer of BGI, on behalf of the Borrowers, in substantially the form of EXHIBIT Exhibit D hereto signed by the chief financial officer or vice president of finance of the MCRLP or MCRC, as applicable, (a “Compliance Certificate”) and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants covenant contained in Section 8.7 §10, the calculation of the Fixed Charge Coverage Ratio, the calculation of Consolidated EBITDA for the most recently ended period of four (4) consecutive Fiscal Quarters of BGI and Section 9 hereofits Subsidiaries (if applicable), reconciliations to reflect changes in GAAP since the Balance Sheet Date and setting forth the projections and other information required pursuant to §8.4(g);
(d) promptly contemporaneously with the filing or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of any of the Borrowers;
(e) within fifteen (15) calendar 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 Aggregate Borrowing Base, the Excess Availability (and, if different, Adjusted Excess Availability), the computation of the Excess Availability covenant in §10.1, and, to the extent applicable, an updated Schedule 7.24 as at the end of such fiscal month or other date so requested by the Administrative Agent or any Co-Collateral Agent; provided that if at any time (i) a Cash Dominion Event has occurred and is continuing (unless and until a Cash Dominion Cure Event shall have occurred), then within five (5) days after the end of each calendar week, a Borrowing Base Report setting forth the Aggregate Borrowing Base, the Excess Availability (and, if different, Adjusted Excess Availability) and the computation of the Excess Availability covenant in §10.1, 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 (ii) a Default or an Event of Default has occurred and is continuing and until such Default or Event of Default is cured or waived pursuant to the terms and conditions of this Agreement as determined by the Administrative Agent, a copy then within five (5) days after the end of each report calendar week or more frequently as the Administrative Agent or any Co-Collateral Agent may request, a Borrowing Base Report setting forth the Aggregate Borrowing Base, the Excess Availability (including any so-called letters and, if different, Adjusted Excess Availability) and the computation of reportable conditions or letters the Excess Availability covenant in §10.1, as at the end of no material weakness) submitted 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), in all cases, together with such other information relating to the Borrower, MCRC, Collateral as the Administrative Agent or any other Guarantor Co-Collateral Agent shall reasonably request, and accompanied by all supporting detail, reports and documentation as the Administrative Agent or such Co-Collateral Agent shall reasonably request;
(f) contemporaneously with any of their respective subsidiaries by the Accountants delivery made in connection with clause (e) of this §8.4, (i) an Accounts Receivable report broken down by each annual audit credit card processor (or other account debtor if Eligible Corporate Sales Receivables are then included in the Aggregate Borrowing Base) and (ii) an inventory stock ledger report with respect to any Accounts Receivable and inventory included in the Aggregate Borrowing Base;
(g) within thirty (30) days after the end of each Fiscal Year, and from time to time upon request of the books Administrative Agent, monthly projections consisting of balance sheets, income statements, cash flow statements and availability reports for the upcoming Fiscal Year of BGI and its Subsidiaries in substantially the same form as, and updating, those projections delivered to the Lenders and referred to in §7.4.3 or, if applicable, updating any later such projections delivered in response to a request pursuant to this §8.4(g);
(h) on or before each anniversary of the BorrowerEffective Date, MCRCeach Borrower or Guarantor shall deliver to the Co-Collateral Agents a certificate, or 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 other Guarantor or such subsidiary by such Accountants or information provided in the perfection certificate delivered in connection with any interim audit thereof pertaining the Security Agreement since the date on which such perfection certificate was signed by such Person (or most recent updated pursuant to any phase this §8.4(h)) or (B) attaching an updated perfection certificate for such Person certified to be true and correct as of the business date thereof;
(i) as soon as practicable, but in any event not later than thirty (30) days after the end of each fiscal month of the BorrowerBorrowers, MCRC copies of the unaudited consolidated balance sheet of BGI and its Subsidiaries as at the end of such month, and the related consolidated statement of income and consolidated statement of cash flow 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 BGI that the information contained in such financial statements fairly presents the financial position of BGI and its Subsidiaries on the date thereof (subject to year-end adjustments);
(j) from time to time such other financial data and information (including accountants, management letters) as the Administrative Agent or any other Guarantor Lender may reasonably request; and
(k) as and when required, all information set forth in §5.1 of each applicable Intellectual Property Security Agreement. Documents required to be delivered pursuant to this §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 delivers such documents to the Administrative Agent for posting to the Lenders, or provides a link thereto on the Borrowers’ website on the Internet at the website address listed in §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 subsidiary;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 §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
Financial Statements, Certificates and Information. The Borrower -------------------------------------------------- will deliver and will cause MCRC to deliver to the Administrative AgentBank:
(a) as soon as practicable, but in any event not later than ninety (90) days after the end of each fiscal year of its fiscal yearsthe Borrower, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited consolidated balance sheet sheets of MCRLP the Borrower and its subsidiaries Subsidiaries at the end of such year, and the related audited consolidated statements of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year and all such statements to be in reasonable detail, each prepared in accordance with GAAP, and, in each case, accompanied generally accepted accounting principles and certified by an auditor's report independent certified public accountant satisfactory to the Bank to have been prepared without qualification by in accordance with generally accepted accounting principles and to fairly present the Accountantsfinancial condition of the Borrower and its Subsidiaries as of the close of business on the date thereof and the results of operations for the fiscal year then ended;
(b) as soon as practicable, but in any event not later than forty-forty- five (45) days after the end of each of its the first three (3) fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedBorrower, copies of the unaudited consolidated balance sheet sheets of MCRLP the Borrower and its subsidiaries Subsidiaries as at the end of such quarter, and the related unaudited consolidated statements of operations, owner's equity (deficit) income and cash flows for the portion of MCRLP's the fiscal year of the Borrower and its Subsidiaries then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Borrower that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Borrower and its subsidiaries Subsidiaries on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery deliver of the financial statements referred to in subsections (a) (for the fourth fiscal quarter of each fiscal year) above and subsection (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT D Exhibit F hereto signed by the chief principal financial or accounting officer or vice president of finance of the MCRLP or MCRC, as applicable, Borrower and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereof;
(d) promptly if requested by the Administrative Agent, a copy of each report (including any so-called letters of reportable conditions or letters of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;S)(S)
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower will deliver and will or cause MCRC to deliver be delivered to the Administrative Agent:
(a) as soon as practicableavailable, but and in any event not no later than ninety sixty (9060) days after the end last day of the first three fiscal quarters of each fiscal year of its fiscal yearsthe Borrower, unless, in a copy of the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if prepared, the audited consolidated balance sheet of MCRLP and its subsidiaries at the end Consolidated Group on a combined basis as of the last day of such year, fiscal quarter and the related audited consolidated statements of operationsincome, owner's equity (deficit) retained earnings, and cash flows of the Consolidated Group or the fiscal quarter and for the year fiscal year-to-date period then ended, each in each case (except for statements of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth reasonable detail showing in comparative form the figures for the corresponding date and period in the previous fiscal year and all such statements to be in reasonable detailyear, prepared in accordance with GAAP, and, in each case, accompanied by an auditor's report prepared without qualification by GAAP (subject to the Accountants;
(b) as soon as practicable, but in any event not later than fortyabsence of footnote disclosures and year-five (45) days after the end of each of its first three (3) fiscal quarters:
(i) in the case of MCRLP, if prepared, copies of the unaudited consolidated balance sheet of MCRLP and its subsidiaries as at the end of such quarter, the related unaudited consolidated statements of operations, owner's equity (deficit) and cash flows for the portion of MCRLP's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECaudit adjustments), together with a certification by a Financial Officer of the chief financial officer or vice president of finance of MCRLP or MCRC, as applicable, REIT that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (the Consolidated Group, taken as the case may be) and its subsidiaries a whole, on the date thereof (subject to year-year- end adjustmentsadjustments and absence of footnotes);
(b) as soon as available, and in any event no later than one hundred twenty (120) days after the last day of each fiscal year of the Consolidated Group, a copy of the consolidated balance sheet of the Consolidated Group as of the last day of the fiscal year then ended and the consolidated statements of income, retained earnings, and cash flows of the Consolidated Group for the fiscal year then ended, and accompanying notes thereto, each in reasonable detail showing in comparative form the figures for the previous fiscal year, accompanied by an unqualified opinion (without a “going concern” or like qualification, commentary, or exception and without any qualification or exception as to the scope of such audit) from a firm of independent public accountants of recognized national standing, selected by the Borrower and reasonably satisfactory to the Agent, to the effect that the consolidated financial statements have been prepared in accordance with GAAP and present fairly in accordance with GAAP the consolidated financial condition of the Consolidated Group as of the close of such fiscal year and the results of their operations and cash flows for the fiscal year then ended and that an examination of such accounts in connection with such financial statements has been made in accordance with generally accepted auditing standards and, accordingly, such examination included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) concurrent with any delivery of financial statements under clause (a) or (b) above, a Compliance Certificate executed by a Financial Officer of the REIT (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with the Financial Covenants and the Unencumbered Pool Covenant, including, without limitation, a calculation of the Net Operating Income of each Unencumbered Pool Asset, (iii) stating whether there are any defaults under Leases at an Unencumbered Pool Asset, and (iv) stating whether any material change in GAAP or in the application thereof has occurred since the date of the most recent audited financial statements delivered by Borrower that affects the financial statements, and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;
(d) simultaneously with the delivery of the financial statements referred to in subsections (aSection 7.4(a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal yearSection 7.4(b), (i) a rent roll for each Unencumbered Pool Asset, including Tenant names, Lease commencement dates and termination dates, and rental rates, (ii) an operating statement for each Unencumbered Pool Asset, and a consolidated operating statement for all such Unencumbered Pool Assets, in each case, for such fiscal quarter, year-to-date, and trailing twelve (12) month period then ended, on an actual basis, (iii) a schedule (A) listing the form of EXHIBIT D hereto signed real estate owned by the chief financial officer Borrower and its Subsidiaries (or vice president in which the Borrower or any of finance of its Subsidiaries owns an interest, including any leasehold interest) and stating the MCRLP location thereof, the date acquired, the acquisition cost thereof, and the ownership type (fee simple or MCRC, as applicableGround Lease), and (if applicableB) reconciliations to reflect changes in GAAP since listing all Indebtedness of the Borrower and its Subsidiaries (specifying the original principal amount of such Indebtedness and the current amount outstanding, the holder thereof, the maturity date thereof, any extension options available thereunder, the applicable Financial Statement Dateinterest rate and any collateral security therefor and specifying whether such Indebtedness is Recourse Indebtedness or Non-Recourse Indebtedness), but only in each case of the foregoing clauses (i) through (iii), in form and substance reasonably satisfactory to the Agent;
(e) promptly following the Agent’s request, after they are filed with the Internal Revenue Service or other applicable Governmental Authority, copies of all income tax returns and amendments thereto of the Borrower and REIT;
(f) notice of any material audits pending or threatened in writing with respect to any tax returns filed by XXXX or any of its Subsidiaries promptly following notice of such audit;
(g) upon the Agent’s or any Xxxxxx’s written request, evidence reasonably satisfactory to the Agent of the timely payment of all real estate taxes for the Unencumbered Pool Assets;
(h) promptly upon becoming aware thereof, notice of a change in the credit rating of the REIT, the Borrower or any Investment Grade Tenant or any announcement that any rating of the REIT, the Borrower or an Investment Grade Tenant is “under review” or that such rating has been placed on a watch list or that any similar action has been taken by a Rating Agency;
(i) within five (5) Business Days of receipt, copies of any written claim made with respect to any Non-Recourse Exclusion;
(j) copies of quarterly and annual fund level reports provided by or on behalf of the REIT or the Borrower to investors and other constituents thereof, in each case, promptly following delivery thereof to such investors or constituents;
(k) promptly upon the request of Agent, 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 of REIT which are not publicly available;
(l) from time to time, promptly following any request therefor, (x) such other financial data and information in the possession of REIT or its Subsidiaries (including without limitation auditors’ management letters, status of litigation or investigations against REIT or any of its Subsidiaries and any settlement discussions relating thereto, property inspection and environmental reports for the Unencumbered Pool Assets (to the extent that in Borrower’s possession), and information as to zoning and other legal and regulatory changes affecting the Borrower, any Guarantor or any Subsidiary Owner), or such changes in GAAP affect other information regarding the operations, business affairs and financial covenants set forth in Section 9 hereof; andcondition of the REIT, in the case of MCRLP, setting forth in reasonable detail computations evidencing Borrower or any Subsidiary or compliance with the covenants contained in Section 8.7 terms of this Agreement, as the Agent may reasonably request, and Section 9 hereof;
(dy) promptly if information and documentation requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation. The Borrower shall cooperate with the Agent in connection with the publication to the Lenders 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, “Information Materials”) pursuant to this Section. Any material to be delivered pursuant to this Section 6.1 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, the Borrower shall deliver paper copies thereof to the Agent and the Lenders. The Borrower and the Guarantors authorize Agent and Arrangers to disseminate any such materials, including without limitation the Information Materials, to the other Lenders 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 “as available.” The Agent and the Arrangers do not warrant the adequacy of any Electronic System and expressly disclaim liability for errors or omissions in 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 copy particular purpose, non-infringement of each report third-party rights or freedom from viruses or other code defects, is made by Agent or the Arrangers in connection with the Communications or the Electronic System. In no event shall the Agent, the Arrangers or any of their directors, officers, employees, agents or attorneys have any liability to the Borrower or the Guarantors, any Lender or any other Person for damages of any kind, including, without limitation, direct or indirect, special, incidental, consequential or punitive damages, losses or expenses (including whether in tort, contract or otherwise) arising out of the Borrower’s, any soGuarantor’s, the Agent’s or any Arranger’s transmission of Communications through the Electronic System, and the Borrower and the Guarantors release Agent, the Arrangers and the Lenders from any liability in connection therewith, except as to any of the Agent, the Arrangers or any Lender for any actual damages (but specifically excluding any special, incidental, consequential or punitive damages) to the extent arising from the Agent’s, any such Arranger’s or any such Xxxxxx’s own gross negligence or willful misconduct as determined by a court of competent jurisdiction after the exhaustion of all applicable appeal periods. Borrower acknowledges that certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-called letters of reportable conditions or letters of no material weakness) submitted public information with respect to the Borrower, MCRCits Subsidiaries or its Affiliates, or any other Guarantor or the respective securities of any of their respective subsidiaries the foregoing, and who may be engaged in investment and other market related activities with respect to such Persons’ securities. All of the Information Materials delivered by Borrower hereunder shall be deemed to be private information and shall not be shared with such Public Lenders, except for any Information Materials that are (a) filed with a Governmental Authority and are available to the public, or (b) clearly and conspicuously identified by the Accountants in connection Borrower as “PUBLIC”, which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof. By marking Information Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Agent, the Lenders and the Arrangers to treat such Information Materials as not containing any material non-public information with each annual audit of the books of respect to the Borrower, MCRCits Subsidiaries, its Affiliates or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Information Materials constitute confidential information, they shall be treated as provided in Section 11.14). Borrower agrees that (i) all Information Materials marked “PUBLIC” by Borrower are permitted to be made available through a portion of any other Guarantor electronic dissemination system designated “Public Investor” or such subsidiary by such Accountants a similar designation, and (ii) the Agent and the Arrangers shall be entitled to 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 in connection with any interim audit thereof pertaining to any phase of the business of the Borrower, MCRC or any other Guarantor or any such subsidiary;a similar designation.
Appears in 1 contract
Financial Statements, Certificates and Information. The Borrower Company will deliver and will cause MCRC to deliver to the Administrative AgentTCW Investors:
(a) as soon as practicable, but in any event not later than then ninety (90) days after the end of each fiscal year of its fiscal years, unless, in the case of MCRC, MCRC has filed for an extension in accordance with Section 7.4(g) hereof, in which case such annual financial statements shall be due in accordance with the proviso to Section 7.4(g):
(i) in the case of MCRLP, if preparedCompany, the audited consolidated balance sheet of MCRLP the Company and its subsidiaries Subsidiaries and the consolidating balance sheet of the Company and its Subsidiaries, each as at the end of such year, and the related audited consolidated statements statement of operations, owner's equity (deficit) income and cash flows for the year then ended, in each case (except for statements consolidated statement of cash flow and owner's equity) with supplemental consolidating schedules provided by MCRLP; and
(ii) in the case statement of MCRC, the audited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) at the end of income for such year, the related audited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the year then ended, in each case with supplemental consolidating schedules (except for statements of cash flow and stockholders' equity) provided by MCRC; each setting forth in comparative form the figures for the previous fiscal year and all such consolidated and consolidating statements to be in reasonable detail, prepared in accordance with GAAPgenerally accepted accounting principles, and, in each case, accompanied by an auditor's report prepared without qualification and certified by the AccountantsCompany's independent certified public accountants;
(b) as soon as practicable, but in any event not later than forty-five (45) days after the end of each of its first three (3) the fiscal quarters:
(i) in quarters of the case of MCRLP, if preparedCompany, copies of the unaudited consolidated balance sheet of MCRLP the Company and its subsidiaries Subsidiaries and the unaudited consolidating balance sheet of the Company and its Subsidiaries, each as at the end of such quarter, and the related unaudited consolidated statements statement of operations, owner's equity (deficit) income and consolidated statement of cash flows flow and consolidating statement of income for such quarter and the portion of MCRLPthe Company's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and owner's equity) provided by MCRLP; and
(ii) in the case of MCRC, copies of the unaudited consolidated balance sheet of MCRC and its subsidiaries (including, without limitation, MCRLP and its subsidiaries) as at the end of such quarter, the related unaudited consolidated statements of operations, stockholders' equity (deficit) and cash flows for the portion of MCRC's fiscal year then elapsed, with supplemental consolidating schedules (except with respect to statements of cash flow and stockholders' equity) provided by MCRC; all in reasonable detail and prepared in accordance with GAAP on the same basis as used in preparation of MCRC's Form 10-Q statements filed with the SECgenerally accepted accounting principles, together with a certification by the chief principal financial or accounting officer or vice president of finance of MCRLP or MCRC, as applicable, the Company that the information contained in such financial statements fairly presents the financial position of MCRLP or MCRC (as the case may be) Company and its subsidiaries their Subsidiaries on the date thereof (subject to year-end adjustments);
(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 Company, the unaudited consolidated balance sheet of the Company and its Subsidiaries and unaudited consolidating balance sheet of the Company and their Subsidiaries, each as at the end of such month, and the related consolidated statement of income and consolidated statement of cash flow and consolidating statement of income for such month, all in reasonable detail and each prepared in accordance with generally accepted accounting principles, 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 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 (a) (for the fourth fiscal quarter of each fiscal year) above and (b) (for the first three fiscal quarters of each fiscal year)above, a statement in the form of EXHIBIT D hereto signed certified by the chief principal financial or accounting officer or vice president of finance of the MCRLP or MCRC, as applicable, Company setting forth in reasonable detail computations evidencing compliance with certain covenants made by the Company and (if applicable) reconciliations to reflect changes in GAAP since the applicable Financial Statement Date, but only generally accepted accounting principles to the extent that such changes in GAAP affect the financial covenants set forth in Section 9 hereof; and, in the case of MCRLP, setting forth in reasonable detail computations evidencing compliance with the covenants contained in Section 8.7 and Section 9 hereofBalance Sheet Date;
(de) promptly if requested by contemporaneously with the Administrative Agentfiling or mailing thereof, copies of all material of a financial nature filed with the Securities and Exchange Commission or sent to the stockholders of the Company;
(f) on or prior to the end of each fiscal year of the Company and their Subsidiaries and otherwise from time to time upon request of the TCW Investors, a copy monthly budget for the next fiscal year of each report the Company and their Subsidiaries including pro forma consolidated and consolidating (prepared by division rather than by corporate entity) statements of income and consolidated statement of cash flows of the Company and their Subsidiaries; and
(g) from time to time such other financial data and information (including accountants, management letters) as the TCW Investors may reasonably request.
(h) Company shall notify the TCW Investors forthwith in writing, upon becoming aware of any so-called letters default or event which is or would be, upon the passing of reportable conditions or letters time, a "Voting Rights Triggering Event," including any occasion upon which the Maintenance Test Ratio exceeds the Maximum Test Ratio (as such terms are defined in the Certificate of no material weakness) submitted to the Borrower, MCRC, or any other Guarantor or any of their respective subsidiaries by the Accountants in connection with each annual audit of the books of the Borrower, MCRC, 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, MCRC or any other Guarantor or any such subsidiary;Designation).
Appears in 1 contract
Samples: Securityholders Agreement (American Restaurant Group Inc)
