Financial Statements; Information. Furnish to Lender (i) Borrower’s quarterly internally-prepared consolidated and consolidating financial statements, within forty- five (45) days of each of Borrower’s fiscal quarter-ends, and certified by the Chief Financial Officer (or such other designee reasonably acceptable to Lender) of the Borrower to fairly present the financial condition of Borrower; (ii) annual audited consolidated and consolidating financial statements of Borrower, prepared by a Registered Public Accounting Firm acceptable to Lender, together with an unqualified opinion of such accountants reasonably acceptable to Lender, any management letters issued by such accountants and an attestation report of the Registered Public Accounting Firm as to the Borrower’s internal controls pursuant to Section 404 of Xxxxxxxx-Xxxxx expressing a conclusion to which the Lender does not object, all within one hundred twenty (120) days of Borrower’s fiscal year-end; (iii) such other information respecting the financial condition and operations of Borrower or any Affiliate or Subsidiary thereof as Lender may from time to time reasonably request. All financial statements, opinions, reports and management letters described in clause (i) and (ii) above shall be prepared in accordance with GAAP and applicable Securities Laws and shall be in form and content satisfactory to Lender, and shall include, without limitation, an income statement, balance sheet, a cash flow statement and a list of contingent liabilities and claims reportable under GAAP guidelines. All financial statements shall be accompanied by a compliance certificate, in the form of Exhibit 4.1(c) hereto, setting forth Borrower’s compliance with, and actual calculations for, financial covenants required under Section 4.3 hereof, and signed by the Chief Financial Officer of Borrower (or such other designee reasonably acceptable to Lender). Additionally, Borrower shall furnish to Lender, (A) promptly after any request by Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them; (B) 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 SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Lender pursuant hereto; and (C) promptly, and in any event within five Business Days after receipt thereof by Borrower thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation by such agency regarding financial or other operational results of Borrower.
Appears in 1 contract
Samples: Loan Agreement (Alico Inc)
Financial Statements; Information. Furnish Credit Parties shall furnish to Lender (i) Borrower’s Credit Parties’ quarterly internally-prepared consolidated and consolidating financial statements: (x) for the quarters ending March 31st, June 30th, and December 31st of each year, within forty- forty-five (45) days of each of Borrower’s fiscal quarter-ends, and (y) for fiscal quarter ending September 30th of each year, on or before December 29th of such year, and certified by the Chief Financial Officer (or such other designee reasonably acceptable to Lender) of the Borrower Atlantic Blue Group, Inc. to fairly present the financial condition of BorrowerCredit Parties; (ii) Credit Parties’ quarterly internally-prepared consolidated and consolidating financial statements, excluding the results of the operations of Alico, Inc., for the quarter ending September 30th of each year, within forty-five (45) days of such fiscal quarter-end, and certified by the Chief Financial Officer (or such other designee reasonably acceptable to Lender) of Atlantic Blue Group, Inc. to fairly present the financial condition of Credit Parties, (iii) annual audited consolidated and consolidating financial statements of BorrowerCredit Parties, prepared by a Registered Public Accounting Firm acceptable to Lender, together with an unqualified opinion of such accountants reasonably acceptable to Lender, any management letters issued by such accountants and an attestation report of the Registered Public Accounting Firm as to the Borrower’s internal controls pursuant to Section 404 of Xxxxxxxx-Xxxxx expressing a conclusion to which the Lender does not objectaccountants, all within one hundred twenty fifty (120150) days of each Borrower’s fiscal year-end; (iiiiv) such other information respecting the financial condition and operations of Borrower Credit Parties or any Affiliate or Subsidiary thereof as Lender may from time to time reasonably request. All financial statements, opinions, reports and management letters described in clause clauses (i) ), (ii), and (iiiii) above shall be prepared in accordance with GAAP and applicable Securities Laws Laws, if any, and shall be in form and content satisfactory to Lender, and shall include, without limitation, an income statement, balance sheet, a cash flow statement and a list of contingent liabilities and claims reportable under GAAP guidelines. All financial statements described in clauses (i) and (iii) above shall be accompanied by a compliance certificate, in the form of Exhibit 4.1(c) hereto, setting forth Borrower’s Credit Parties’ compliance with, and actual calculations for, financial covenants required under Section 4.3 hereof, and signed by the Chief Financial Officer of Borrower Atlantic Blue Group, Inc. (or such other designee reasonably acceptable to Lender). Additionally, Borrower shall furnish to Lender, (A) promptly after any request by Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them; (B) 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 SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Lender pursuant hereto; and (C) promptly, and in any event within five Business Days after receipt thereof by Borrower thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation by such agency regarding financial or other operational results of Borrower.”
Appears in 1 contract
Financial Statements; Information. Furnish The Company will furnish (in duplicate) to Lender you, so long as you or your nominee shall be obligated to purchase or shall hold any of the Notes and to each other Institutional Holder of 5% or more of the aggregate outstanding principal amount of the Notes or which has acquired 100% of the outstanding Notes originally issued to an Initial Holder:
(a) as soon as practicable and in any event within 60 days after the end of each of the first three quarterly fiscal periods in each fiscal year of the Company, consolidated and consolidating balance sheets of the Company and its Subsidiaries as of the end of such quarterly period and the related consolidated and consolidating statements of earnings, stockholders' equity and cash flows of the Company and its Subsidiaries for such period and (in the case of the second and third such quarterly periods) for the portion of the fiscal year ended with the last day of such quarterly period, setting forth, in the case of such consolidated statements, in comparative form the figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified as complete and correct in all material respects (subject to changes resulting from year-end audit adjustments) by the principal financial officer of the Company;
(b) as soon as practicable and in any event within 90 days after the end of each fiscal year of the Company, consolidated and consolidating balance sheets of the Company and its Subsidiaries as of the end of such year and the related consolidated and consolidating statements of earnings, stockholders' equity and cash flows for such fiscal year, setting forth in each case in comparative form the respective figures for the previous fiscal year, all in reasonable detail and (1) in the case of such consolidated financial statements, accompanied by a report thereon of Deloitte & Touche or other independent certified public accountants of recognized national standing selected by the Company, which report (i) Borrower’s quarterly internally-prepared consolidated shall not be made in reliance upon the opinion of any other accountant; (ii) shall be made without qualifications or modifications within the meaning of Statement on Auditing Standards No. 58 (except for such qualifications and modifications resulting from changes in accounting principles and methods agreed to by such accountants); (iii) shall state that the financial statements are the responsibility of the Company's management and the independent auditor's responsibility is to express an opinion on the financial statements based on the audits; (iv) shall state that the audits are conducted in accordance with generally accepted auditing standards, which require the planning and performance of the audit to obtain reasonable assurance as to whether the financial statements are free of material misstatement, including the examination, on a test basis, of evidence supporting the amounts and disclosures in the financial statements and the assessment of the accounting principles used and of significant estimates by management, as well as an evaluation of the overall financial statement presentation; and (v) shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon as of the dates indicated and the results of their operations and their cash flows for the periods indicated in conformity with GAAP, and (2) in the case of such consolidating financial statements, within forty- five certified as complete and correct in all material respects by the principal financial officer of the Company;
(45c) days concurrently with each delivery of each financial statements pursuant to clause (a) or (b) of Borrower’s fiscal quarter-endsthis 5.12, an Officers' Certificate:
(1) stating that the signatories thereto have reviewed the terms of the Agreements and of the Notes and have made, or caused to have been made under their supervision, a review in reasonable detail of the transactions and conditions of the Company and its Subsidiaries during the accounting period covered by such financial statements, and certified by that such review has not disclosed the Chief Financial Officer (existence during or at the end of such other designee reasonably acceptable to Lender) accounting period, and that such signatories do not have knowledge of the Borrower existence as at the date of such Officers' Certificate, of any condition or event which constitutes a Default or an Event of Default, or, if any such condition or event existed or exists, the nature and period of existence thereof and what action the Company has taken or is taking or proposes to fairly present take with respect thereto,
(2) setting forth, as of the financial condition date of Borrower; such balance sheet for such period, (i) the respective amounts of Stockholders' Equity, Consolidated Net Income, Consolidated Current Assets, Consolidated Current Liabilities, Consolidated Tangible Assets, Consolidated Funded Debt, Net Income Available for Fixed Charges and Fixed Charges, (ii) annual audited consolidated and consolidating financial statements the aggregate amount of Borrower, prepared by a Registered Public Accounting Firm acceptable to Lender, together with an unqualified opinion of such accountants reasonably acceptable to Lender, any management letters issued by such accountants and an attestation report of the Registered Public Accounting Firm as to the Borrower’s internal controls pursuant to Section 404 of Xxxxxxxx-Xxxxx expressing a conclusion to Volume Incentive Rebates for which the Lender does not objectCompany or any Subsidiary shall have become obligated during such period and the respective portions thereof which shall have been paid in common stock and cash, all within one hundred twenty (120) days of Borrower’s fiscal year-end; and (iii) such other information respecting the aggregate principal amount of outstanding Funded Debt and Current Debt of all Subsidiaries and outstanding Debt secured by Liens permitted by 5.2, and
(3) setting forth facts or computations in reasonable detail demonstrating compliance with the restrictions contained in 5.1, 5.2, 5.5(E), 5.6(B), 5.6(F) and 5.7;
(d) together with each delivery of annual financial condition and operations statements pursuant to clause (b) of Borrower or any Affiliate or Subsidiary thereof as Lender may from time this 5.12, a written statement by the independent public accountants referred to time reasonably request. All financial statements, opinions, reports and management letters described in said clause (b):
(1) stating that (i) they have read the Officers' Certificate delivered in connection with the annual financial statements pursuant to clause (c) of this 5.12 for such fiscal year, and (ii) above shall be prepared based upon their annual audit examination of the consolidated financial statements delivered pursuant to clause (b) of this 5.12 nothing has come to their attention which causes them to believe that the matters set forth in such Officers' Certificate pursuant to clauses (2) and (3) of such clause (c) have not been properly stated in accordance with GAAP and applicable Securities Laws and shall be in form and content satisfactory to Lender, and shall include, without limitation, an income statement, balance sheet, a cash flow statement and a list of contingent liabilities and claims reportable under GAAP guidelines. All financial statements shall be accompanied by a compliance certificate, in the form of Exhibit 4.1(c) hereto, setting forth Borrower’s compliance with, and actual calculations for, financial covenants required under Section 4.3 hereof, and signed by the Chief Financial Officer of Borrower (or such other designee reasonably acceptable to Lender). Additionally, Borrower shall furnish to Lender, (A) promptly after any request by Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee terms of the board Agreements, and
(2) stating that, although their audit was not directed toward obtaining knowledge of directors) of the Borrower by independent accountants noncompliance, nothing came to their attention in connection with their audit which caused them to believe that the accounts or books Company was not in compliance with the provisions of the Borrower or any Subsidiary5.1 through 5.10 of this Agreement, or any audit of any of them; insofar as such provisions relate to accounting matters;
(Be) 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 SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Lender pursuant hereto; and upon receipt thereof (C) promptly, and in any event within five Business Days after receipt thereof by Borrower thereofthereafter), copies of each all reports submitted to the Company or any Subsidiaries by independent public accountants in connection with any annual, interim or special audit of the Company or any Subsidiaries made by such accountants;
(f) promptly upon their becoming available (and in any event within five Business Days thereafter), copies of (1) all financial statements, reports, notices, proxy statements and other information sent or made available generally by the Company to any class of its Security holders (other than promotional and other materials furnished to holders of common stock of the Company solely by reason of their status as customers of the Company or a Subsidiary), and (2) all regular and periodic reports (including reports on Form 8-K) and any registration statements and prospectuses filed by the Company or any of its Subsidiaries with any securities exchange or with the Commission;
(g) promptly upon any Responsible Officer obtaining knowledge of any condition or event which constitutes a Default or an Event of Default, or becoming aware that the holder of any Note has given any notice or taken any other correspondence received from action with respect to a claimed Default or Event of Default or that any Person has given any notice to the SEC Company or any Subsidiary or taken any other action with respect to a claimed default under or in respect of any Debt or lease referred to in 6.1(F) or (G) or comparable agency with respect to the occurrence or existence of any event or condition of the type referred to in 6.1(J), (K) or (1), an Officers' Certificate specifying the nature and period of existence thereof and what action the Company has taken or is taking or proposes to take with respect thereto;
(h) promptly upon any Responsible Officer becoming aware of the occurrence of any (1) Reportable Event or (2) non-exempt "PROHIBITED TRANSACTION," as such term is defined in Section 4975 of the Code, in connection with any Plan or any trust created thereunder, a written notice specifying the nature thereof, what action the Company has taken, is taking and proposes to take with respect thereto, and, when known, any action taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and
(i) promptly upon request therefor (and in any applicable non-U.S. jurisdiction) concerning any investigation event within five Business Days thereafter), such other information as to the business, properties, operations or possible investigation by such agency regarding condition (financial or other operational results otherwise) of Borrowerthe Company or any of its Subsidiaries as may from time to time be reasonably requested by any holder of the Notes.
Appears in 1 contract
Samples: Note Agreement (Spartan Stores Inc)
Financial Statements; Information. Furnish To provide to the Lender, the following financial information, certificates and statements, in form and content reasonably acceptable to the Lender and certified as true, correct and complete by the Borrower’s Chief Financial Officer or another duly authorized executive officer of the Borrower:
(i) on or before the ninetieth (90) day following the close of each fiscal year of the Borrower, (A) annual consolidated financial statements of the Borrower and the Operating Subsidiary that have been audited by a nationally recognized independent certified public accountant, which shall be accompanied by consolidating schedules and management letters (if issued), (B) a true, correct and complete copy of the Borrower’s quarterly internally10-prepared consolidated and consolidating Q financial statements, reporting the Borrower’s and the Operating Subsidiary’s current financial position and the results of their operations for the quarter then ended and year-to-date, and (C) a Quarterly Covenant Compliance Certificate for the immediately preceding calendar quarter in the form attached as Exhibit 2 hereto;
(ii) on or before the forty-fifth (45th) day following the close of each of the first three (3) calendar quarters of each fiscal year of the Borrower, (A) a true, correct and complete copy of the Borrower’s 10-Q financial statements, reporting the Borrower’s and the Operating Subsidiary’s current financial position and the results of their operations for the quarter then ended and year-to-date, and (B) a Quarterly Covenant Compliance Certificate in the form attached as Exhibit 2 hereto;
(iii) within forty- five ten (4510) days of each filing with the Federal Reserve Board or other appropriate federal regulatory agency, a copy of the Borrower’s fiscal quarter-endsQuarterly Consolidated Report of Condition and Income (each, a “Call Report”) and certified by a copy of the Chief Financial Officer Borrower’s F.R. Y-9 Parent Only financial statements;
(or such other designee reasonably acceptable to Lenderiv) within thirty (30) days of filing, annual tax returns of the Borrower to fairly present and the financial condition of BorrowerOperating Subsidiary; and
(iiv) annual audited consolidated and consolidating financial statements of Borrower, prepared by a Registered Public Accounting Firm acceptable to Lender, together with an unqualified opinion of such accountants reasonably acceptable to Lender, any management letters issued by such accountants and an attestation report of the Registered Public Accounting Firm as to the Borrower’s internal controls pursuant to Section 404 of Xxxxxxxx-Xxxxx expressing a conclusion to which the Lender does not object, all within one hundred twenty (12020) days of Borrowerthe Lender’s fiscal yearrequest, (A) all documentation and other information that the Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-endmoney laundering rules and regulations, including the Patriot Act; and (iiiB) such other information respecting and/or reports relating to each Borrower’s business, operations, properties or prospects as the financial condition and operations of Borrower Administrative Agent or any Affiliate or Subsidiary thereof as Lender Lenders may from time to time reasonably request. All financial statements, opinions, reports and management letters described in clause (i) and (ii) above shall be prepared in accordance with GAAP and applicable Securities Laws and shall be in form and content satisfactory to Lender, and shall include, without limitation, an income statement, balance sheet, a cash flow statement and a list of contingent liabilities and claims reportable under GAAP guidelines. All financial statements shall be accompanied by a compliance certificate, in the form of Exhibit 4.1(c) hereto, setting forth Borrower’s compliance with, and actual calculations for, financial covenants required under Section 4.3 hereof, and signed by the Chief Financial Officer of Borrower (or such other designee reasonably acceptable to Lender). Additionally, Borrower shall furnish to Lender, (A) promptly after any request by Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them; (B) 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 SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Lender pursuant hereto; and (C) promptly, and in any event within five Business Days after receipt thereof by Borrower thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation by such agency regarding financial or other operational results of Borrower.
Appears in 1 contract
Samples: Loan Agreement (Eagle Bancorp Inc)
Financial Statements; Information. Furnish The Issuer will furnish (in --------------------------------- duplicate) to Lender you, so long as you or your nominee shall be obligated to purchase or shall hold any of the Notes, and to each other institutional holder of outstanding Notes:
(a) as soon as practicable and in any event within 50 days after the end of each of the first three quarterly fiscal periods in each fiscal year of the Issuer, the unaudited consolidated balance sheet of the Issuer and any Restricted Subsidiaries, and the unaudited consolidating balance sheet of the Issuer and any Restricted Subsidiaries, as of the end of such quarterly period and the related unaudited consolidated statements of income, retained earnings and cash flows of the Issuer and any Restricted Subsidiaries, and the related unaudited consolidating statement of income of the Issuer and any Restricted Subsidiaries for such quarterly period and (in the case of the second and third such quarterly periods) for the portion of the fiscal year ended with the last day of such quarterly period, setting forth in each case in comparative form the respective figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified as complete and correct in all material respects in conformity with GAAP (except in respect of consolidating statements and footnotes), subject to changes resulting from year-end audit adjustments, by the principal financial officer of the General Partner of the Issuer;
(b) as soon as practicable and in any event within 95 days after the end of each fiscal year of the Issuer, the unaudited consolidated balance sheet of the Issuer and any Restricted Subsidiaries, and the unaudited consolidating balance sheet of the Issuer and any Restricted Subsidiaries, as of the end of such fiscal year and the related unaudited consolidated statements of income, retained earnings and cash flows of the Issuer and any Restricted Subsidiaries, and the related unaudited consolidating statement of income of the Issuer and any Restricted Subsidiaries, for such fiscal year, setting forth in each case in comparative form the respective figures for the previous fiscal year, all in reasonable detail and certified as complete and correct in all material respects in conformity with GAAP (except in respect of consolidating statements and footnotes) by the principal financial officer of the General Partner of the Issuer, provided, however, that should the Notes receive a rating of lower than 2 -------- ------- ---- from the NAIC, the Issuer agrees to furnish to you, as soon as practicable and in any event within 95 days after the end of each fiscal year of the Issuer, the consolidated balance sheet of the Issuer and any Restricted Subsidiaries, and the unaudited consolidating balance sheet of the Issuer and any Restricted Subsidiaries, as of the end of such fiscal year and the related consolidated statements of income, retained earnings and cash flows of the Issuer and any Restricted Subsidiaries, and the related unaudited consolidating statement of income of the Issuer and any Restricted Subsidiaries, for such fiscal year, setting forth in each case in comparative form the respective figures for the previous fiscal year, all in reasonable detail and (i) Borrower’s quarterly internally-prepared in the case of such consolidated and consolidating financial statements, within forty- five (45) days accompanied by a report thereon of each Coopers & Xxxxxxx L.L.P. or other independent certified public accountants of Borrower’s fiscal quarter-ends, and certified recognized national standing selected by the Chief Financial Officer (or such other designee reasonably acceptable to Lender) Issuer which report shall, unless a waiver of the Borrower to fairly present the financial condition provisions of Borrower; (iithis Section 4(b) annual audited consolidated and consolidating financial statements of Borrower, prepared by a Registered Public Accounting Firm acceptable to Lender, together with an unqualified opinion of such accountants reasonably acceptable to Lender, any management letters issued by such accountants and an attestation report of the Registered Public Accounting Firm as to the Borrower’s internal controls has been obtained pursuant to Section 404 12, be made without qualification as to or by reason of Xxxxxxxx-Xxxxx expressing a conclusion (x) changes in accounting principles and methods (other than changes therein which such accountants express their concurrence), (y) the unavailability of sufficient competent evidential matter on which to which base an audit or the Lender does not object, all within one hundred twenty inadequacy of accounting records or (120z) days restrictions on the scope of Borrower’s fiscal year-end; (iii) the audit conducted and shall comply with generally accepted auditing standards at the time in effect and shall state that such other information respecting financial statements present fairly the financial condition position of the companies being reported upon as at the dates indicated and the results of their operations of Borrower or any Affiliate or Subsidiary thereof as Lender may from time to time reasonably request. All financial statements, opinions, reports and management letters described in clause (i) cash flows for the periods indicated and (ii) above shall be have been prepared in accordance with GAAP and applicable Securities Laws and shall be consistently applied (except for changes in form and content satisfactory to Lenderapplication in which such accountants concur) on a basis consistent with prior years, and shall includethat the examination of such accountants has been made in accordance with generally accepted auditing standards, without limitationand accordingly included such tests of pertinent accounting records and such other auditing procedures as were considered necessary in the circumstances, and (ii) in the case of such consolidating balance sheets and statements of income of the Issuer and any Restricted Subsidiaries, certified as complete and correct in all material respects in conformity with GAAP by the principal financial officer of the General Partner of the Guarantor;
(c) concurrently with each delivery of financial statements pursuant to clause (a) or (b) of this Section 4, an income statement, balance sheet, a cash flow statement and a list of contingent liabilities and claims reportable under GAAP guidelines. All financial statements shall be accompanied by a compliance certificate, Officer's Certificate substantially in the form of Exhibit 4.1(cJ (i) heretostating that such officer has reviewed the terms of this Agreement and of the Notes and has made, setting forth Borrower’s compliance withor caused to be made under such officer's supervision, a review in reasonable detail of the transactions and conditions of the Issuer and any Restricted Subsidiaries during the accounting period covered by such financial statements, and actual calculations forthat such review has not disclosed the existence during, financial covenants required under Section 4.3 hereofor at the end of such accounting period, and signed by that such officer does not have knowledge of the Chief Financial Officer existence as at the date of Borrower such Officer's Certificate, of any condition or event which constitutes a Default or an Event of Default, or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action the Issuer has taken or is taking or proposes to take with respect thereto, (or such other designee reasonably acceptable to Lender). Additionallyii) setting forth, Borrower shall furnish to Lenderand showing in reasonable detail the computation of, (A) as of the last day of such quarterly or annual accounting period, as the case may be, the respective amounts of Consolidated Tangible Net Worth, Consolidated Funded Debt, Short-Term Debt, Attributable Debt, Secured Debt and Consolidated Net Tangible Assets, and (B) for the period of four consecutive fiscal quarters of the Issuer which shall have ended on the last day of such quarterly or annual accounting period, as the case may be, the respective amounts of Consolidated Net Income, Consolidated Net Operating Income and Consolidated Debt Service, (iii) setting forth computations in reasonable detail and dates, where applicable, demonstrating compliance with the restrictions contained in Sections 6.1(d), 6.2, 6.3, 6.6, 6.7, and 6.12 and (iv) if the Issuer Incurred any Short-Term Debt during such quarterly or annual period, as the case may be, setting forth, with respect to each such Incurrence, (A) the 45-day period during the prior 12-month period during which Short- Term Debt of the Issuer and any Restricted Subsidiaries was zero or (B) the 45-day period during the prior twelve-month period during which Designated Short-Term Debt was calculated and the computation in reasonable detail of such Designated Short-Term Debt;
(d) promptly after upon their becoming available (and in any request by Lenderevent within ten Business Days thereafter), copies of any detailed audit (i) all financial statements, reports, management letters notices, proxy statements and other information sent or recommendations made available generally by the Issuer to any class of its security holders other than the Guarantor or by any Subsidiary to any class of its security holders other than the Guarantor, the Issuer or any Wholly-Owned Subsidiary, (ii) all regular and periodic reports (including reports on Form 8-K) and any registration statements (other than on Form S-8 or a similar form) and prospectuses filed by the Issuer or any Subsidiaries with any securities exchange or with the Commission and (iii) all press releases and other statements made available generally by the Issuer or any Subsidiary to the public concerning material developments in the business of the Issuer or any Subsidiary;
(e) promptly upon receipt thereof (and in any event within five Business Days thereafter), copies of all reports submitted to the board of directors (Issuer or the audit committee of the board of directors) of the Borrower any Subsidiary by independent public accountants in connection with any annual, interim or special audit of the accounts or books of the Borrower Issuer or any Subsidiary, or Subsidiary made by such accountants;
(f) immediately upon any audit officer of the Issuer obtaining knowledge of any condition or event which constitutes a Default or an Event of them; Default or becoming aware that the holder of any Note has given any notice or taken any other action with respect to a claimed Default or Event of Default an Officer's Certificate specifying the nature and period of existence thereof and what action the Issuer has taken or is taking or proposes to take with respect thereto;
(B) 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 SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Lender pursuant hereto; and (Cg) promptly, and in any event within five Business Days after 30 days of receipt thereof by Borrower thereof, copies of each any notice to the Issuer or any Subsidiary from any federal or state Governmental Body relating to any Order, ruling, statute or other correspondence law or regulation that could reasonably be expected to have a Material Adverse Effect;
(h) promptly upon receipt thereof (and in any event within 20 Business Days thereafter), such quarterly and annual financial statements or other financial information, whether audited or unaudited, of any lessee of real property (whether now owned or hereafter acquired) of the Issuer or any Subsidiary, delivered to the Issuer or any Wholly-Owned Subsidiary, provided that, the Issuer shall not be required to disclose any -------- ---- confidential information received from any such lessee (other than AGC unless such lessee has expressly consented to the SEC (or comparable agency release thereof and if such lessee has not so expressly consented, the Issuer shall have, in any applicable non-U.S. jurisdictionevent, made reasonable efforts to obtain such consent of any such lessee, and provided further, that, in lieu of furnishing such other financial -------- ------- ---- information received by it or its Subsidiaries, the Issuer may furnish to you an index (promptly if the information reflected thereby involves any material changes and in any event no less often than quarterly) concerning of all such other financial information from which you may request (and the Issuer shall deliver) specific items at your discretion;
(i) promptly upon any investigation officer of the Issuer obtaining knowledge of the occurrence of any ERISA Event of the Issuer or possible investigation by any ERISA Affiliate (and in any case within ten Business Days of the occurrence of such agency regarding event), a written notification specifying the nature of such ERISA Event and the action, if any, that Issuer has taken, is taking or proposes to take with respect thereto; and
(j) promptly upon request therefor (and in any event within five Business Days thereafter), if no Default or Event of Default then exists, such other information then within the possession of the Issuer, or, if a Default or Event of Default then exists, such other information (whether within or not within the possession of the Issuer), in each case as to the business, operations, properties, financial condition or other operational results prospects of Borrowerthe Issuer or any Subsidiary as may from time to time be reasonably requested.
Appears in 1 contract
Samples: Restated Note Agreement (National Golf Properties Inc)
Financial Statements; Information. Furnish Borrower shall to Lender (i) Borrower’s quarterly internally-prepared consolidated and consolidating financial statements, within forty- forty-five (45) days of each of Borrower’s fiscal quarter-ends, and certified by the Chief Financial Officer (or such other designee reasonably acceptable to Lender) of the Borrower to fairly present the financial condition of Borrower; (ii) annual audited consolidated and consolidating financial statements of Borrower, prepared by a Registered Public Accounting Firm acceptable to Lender, together with an unqualified opinion of such accountants reasonably acceptable to Lender, any management letters issued by such accountants and an attestation report of the Registered Public Accounting Firm as to the Borrower’s internal controls pursuant to Section 404 of Xxxxxxxx-Xxxxx expressing a conclusion to which the Lender does not object, all within one hundred twenty (120) days of Borrower’s fiscal year-end; (iii) such other information respecting the financial condition and operations of Borrower or any Affiliate or Subsidiary thereof as Lender may from time to time reasonably request. All financial statements, opinions, reports and management letters described in clause (i) and (ii) above shall be prepared in accordance with GAAP and applicable Securities Laws and shall be in form and content satisfactory to Lender, and shall include, without limitation, an income statement, balance sheet, a cash flow statement and a list of contingent liabilities and claims reportable under GAAP guidelines. All financial statements shall be accompanied by a compliance certificate, in the form of Exhibit 4.1(c) hereto, setting forth Borrower’s compliance with, and actual calculations for, financial covenants required under Section 4.3 hereof, and signed by the Chief Financial Officer of Borrower (or such other designee reasonably acceptable to Lender). Additionally, Borrower shall furnish to Lender, (A) promptly after any request by Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them; (B) 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 SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Lender pursuant hereto; and (C) promptly, and in any event within five Business Days after receipt thereof by Borrower thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation by such agency regarding financial or other operational results of Borrower.
Appears in 1 contract
Samples: Loan Agreement (Alico Inc)
Financial Statements; Information. Furnish the following to the Lender:
(a) Within thirty (30) days after the end of each month, commencing on the first full month after the date of this Agreement, the Borrower shall provide to the Lender a certificate stating the Borrowing Base (ia "Borrowing Base Certificate") as of the last day of the previous month, which Borrowing Base Certificate shall be certified as true and correct by the chief executive and chief financial officers of the Borrower’s quarterly internally-prepared , in form and substance acceptable to the Lender in its sole and absolute discretion.
(b) Within thirty (30) days after the end of each month, commencing on the first full month after the date of this Agreement, the Borrower shall provide to the Lender an aging of the Eligible Accounts and a report identifying Eligible Inventory as of the last day of the previous month, as to the Borrower and each of its Subsidiaries.
(c) Within thirty (30) days after the end of each month, commencing on the first full month after the date of this Agreement, the Borrower shall provide to the Lender a detailed consolidated and consolidating financial statementsstatement of actual cash flows for the applicable fiscal year through the end of each such month, within forty- together with a comparison of such actual cash flows to the Borrower's consolidated and consolidating statement of projected cash flows which was previously provided to the Lender.
(d) Within forty-five (45) days after the end of each of Borrower’s fiscal quarter-ends, and certified by the Chief Financial Officer (or such other designee reasonably acceptable to Lender) of the Borrower shall provide to fairly present the financial condition of Borrower; (ii) annual audited Lender unaudited quarterly consolidated and consolidating financial statements of Borrowerfor the Borrower and its Subsidiaries, prepared by a Registered Public Accounting Firm in form and substance acceptable to Lender, together with an unqualified opinion of such accountants reasonably acceptable to Lender, any management letters issued by such accountants and an attestation report of the Registered Public Accounting Firm as to the Borrower’s internal controls pursuant to Section 404 of Xxxxxxxx-Xxxxx expressing a conclusion to which the Lender does not objectin its sole and absolute discretion, all within one hundred twenty including (120i) days a consolidated and consolidating balance sheet; (ii) a consolidated and consolidating statement of Borrower’s fiscal year-endincome; (iii) such other information respecting a consolidated and consolidating statement of cash flows; and (iv) a certificate showing the calculation of the covenants set forth in Section 7.2 hereof, all prepared in accordance with GAAP consistently applied, and in each case together with a certificate from the chief executive and chief financial condition and operations officers of the Borrower or any Affiliate or Subsidiary thereof as Lender may from time to time reasonably request. All financial statements, opinions, reports and management letters described in clause (a "Covenant Compliance Certificate") certifying that (i) such financial statements fairly present in all material respects the consolidated and consolidating financial position of the Borrower and its Subsidiaries as of the date and for the periods covered; and (ii) above as of the date of such certificate there exists no Event of Default under any of the Loan Documents or any fact, condition or event which with the giving of notice or lapse of time, or both, would be an Event of Default under any of the Loan Documents.
(e) Within ninety (90) days after the close of each fiscal year, the Borrower shall provide to the Lender (i) audited consolidated and consolidating annual financial statements for the Borrower and its Subsidiaries, in form and substance acceptable to the Lender in its sole and absolute discretion, which financial statements shall include all of the financial statements required under Section 7.1(d) hereof and which shall be prepared in accordance with GAAP and applicable Securities Laws and shall be in form and content certified without qualification by KPMG Peat Marwick or another independent certified public accounting firm satisfactory to Lenderthe Lender (the "Auditors"); (ii) management prepared consolidated and consolidating annual financial statements for the Borrower and its Subsidiaries, and shall include, without limitation, an income statement, balance sheet, a cash flow statement and a list of contingent liabilities and claims reportable under GAAP guidelines. All which financial statements shall be accompanied by a compliance certificate, in include all of the form of Exhibit 4.1(c) hereto, setting forth Borrower’s compliance with, and actual calculations for, financial covenants statements required under Section 4.3 hereof, 7.1(d) hereof and signed by the Chief Financial Officer of Borrower (or such other designee reasonably acceptable to Lender). Additionally, Borrower which shall furnish to Lender, (A) promptly after any request by Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants be prepared in connection accordance with the accounts or books of the Borrower or any Subsidiary, or any audit of any of themGAAP consistently applied; (Biii) 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 SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Lender pursuant heretoa Covenant Compliance Certificate; and (Civ) promptlya certificate from the Auditors certifying that to the best of their knowledge, and with respect to the matters covered in their audit, there exists no Event of Default under any of the Loan Documents or any fact, condition or event within five Business Days after receipt thereof by Borrower thereof, copies which with the giving of each notice or other correspondence received from lapse of time, or both, would be an Event of Default under any of the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation by such agency regarding financial or other operational results of BorrowerLoan Documents.
Appears in 1 contract
Financial Statements; Information. Furnish The Company will furnish to Lender the Administrative Agent, who will promptly furnish to each Lender:
(a) within sixty (60) days after the end of each quarterly fiscal period in each fiscal year of the Company (other than the last quarterly fiscal period of each such fiscal year):
(i) Borrower’s an unaudited consolidated balance sheet of the Company and the Subsidiaries as at the end of such quarter, and
(ii) unaudited consolidated statements of income, changes in shareholders’ equity and cash flows of the Company and the Subsidiaries, for such quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such quarter, setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to quarterly internally-prepared consolidated and consolidating financial statements, within forty- five (45) days of each of Borrower’s fiscal quarter-endsstatements generally, and certified by the Chief Financial Officer (or such other designee reasonably acceptable to Lender) Treasurer as fairly presenting, in all material respects the financial position of the Borrower companies being reported on and their results of operations and cash flows, subject to fairly present changes resulting from year-end adjustments,
(b) within ninety (90) days after the financial condition end of Borrower; each fiscal year of the Company:
(i) an unaudited consolidated balance sheet of the Company and the Subsidiaries as at the end of such year, and
(ii) annual audited unaudited consolidated and consolidating financial statements of Borrowerincome, prepared by a Registered Public Accounting Firm acceptable to Lender, together with an unqualified opinion of such accountants reasonably acceptable to Lender, any management letters issued by such accountants changes in shareholders’ equity and an attestation report cash flows of the Registered Public Accounting Firm as to Company and the Borrower’s internal controls pursuant to Section 404 of Xxxxxxxx-Xxxxx expressing a conclusion to which Subsidiaries, for such year, setting forth in each case in comparative form the Lender does not objectfigures for the previous fiscal year, all within one hundred twenty (120) days of Borrower’s fiscal year-end; (iii) such other information respecting the financial condition and operations of Borrower or any Affiliate or Subsidiary thereof as Lender may from time to time reasonably request. All financial statementsin reasonable detail, opinions, reports and management letters described in clause (i) and (ii) above shall be prepared in accordance with GAAP and applicable Securities Laws and shall be in form and content satisfactory to Lenderquarterly financial statements generally, and shall includecertified by the Treasurer as fairly presenting, without limitationin all material respects the financial position of the companies being reported on and their results of operations and cash flows.
(c) prompt notice of the following:
(i) the occurrence of any Default or Event of Default with respect to the Company, an income statementETP or any of their respective Subsidiaries or, balance sheetto its knowledge, KMEP or any of its Subsidiaries or any Change in Control Event and
(ii) any development that results in, or could reasonably be expected to result in, a cash flow statement and a list of contingent liabilities and claims reportable Material Adverse Effect; (each notice delivered under GAAP guidelines. All financial statements shall this Section 5.01(c) to be accompanied by a compliance certificate, in the form statement of Exhibit 4.1(c) hereto, a Responsible Officer setting forth Borrower’s compliance with, and actual calculations for, financial covenants required under Section 4.3 hereof, and signed by the Chief Financial Officer of Borrower (or such other designee reasonably acceptable to Lender). Additionally, Borrower shall furnish to Lender, (A) promptly after any request by Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee details of the board of directors) of the Borrower by independent accountants in connection with the accounts event or books of the Borrower development requiring such notice and any action taken or any Subsidiary, or any audit of any of them; (B) 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 SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required proposed to be delivered to the Lender pursuant hereto; and (C) promptly, and in any event within five Business Days after receipt thereof by Borrower thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation by such agency regarding financial or other operational results of Borrower.taken with respect thereto);
Appears in 1 contract
Financial Statements; Information. Furnish The Company will, and will cause each of its Subsidiaries to, maintain a standard system of accounts in accordance with generally accepted accounting principles consistently applied and the Company will, and will cause each of its Subsidiaries to, keep full and complete financial records. The Company will furnish to Lender the Seller Initial Investor and each other Investor which holds Securities which constitute at least 4% of the Common Stock then outstanding the information set forth in this Section 9.1.
(ia) Borrower’s quarterly internally-prepared Within ninety (90) days after the end of each fiscal year, a copy of the consolidated and consolidating financial statementsbalance sheet of the Company and its Subsidiaries, within forty- if any, as at the end of such year, together with consolidated and consolidating statements of income, shareholders' equity and cash flows of the Company and its Subsidiaries, if any, for such year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, all in reasonable detail and duly certified by an independent public accountant of national recognition selected by the Board of Directors of the Company.
(b) Within forty-five (45) days after the end of each of Borrower’s fiscal quarter-ends, a consolidated and consolidating balance sheet of the Company and its Subsidiaries, if any, as of the end of such fiscal quarter and consolidated and consolidating statements of income, shareholders' equity and cash flow for such fiscal quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such month, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year, all in reasonable detail.
(c) Promptly upon receipt thereof, any written report, so called "management letter", and certified any other communication submitted to the Company or any Subsidiary by its independent public accountants relating to the Chief Financial Officer (business, prospects or such other designee reasonably acceptable to Lender) of the Borrower to fairly present the financial condition of Borrower; the Company and its Subsidiaries, if any.
(iid) annual audited consolidated and consolidating Such other information with regard to the business, properties or the condition or operations, financial statements of Borroweror otherwise, prepared by a Registered Public Accounting Firm acceptable to Lender, together with an unqualified opinion of such accountants reasonably acceptable to Lender, any management letters issued by such accountants and an attestation report of the Registered Public Accounting Firm Company of its Subsidiaries, if any, as to the Borrower’s internal controls pursuant to Section 404 of Xxxxxxxx-Xxxxx expressing a conclusion to which the Lender does not object, all within one hundred twenty (120) days of Borrower’s fiscal year-end; (iii) such other information respecting the financial condition and operations of Borrower or any Affiliate or Subsidiary thereof as Lender Investor may from time to time reasonably request. All financial statements; PROVIDED, opinionsTHAT, reports and management letters described in clause nothing contained herein shall entitle the Seller Investors to receive information (iother than the foregoing) and (ii) above shall be prepared in accordance with GAAP and applicable Securities Laws and shall be in form and content satisfactory to Lender, and shall include, without limitation, an income statement, balance sheet, a cash flow statement and a list of contingent liabilities and claims reportable under GAAP guidelines. All financial statements shall be accompanied by a compliance certificate, in the form of Exhibit 4.1(c) hereto, setting forth Borrower’s compliance with, and actual calculations for, financial covenants required under Section 4.3 hereof, and signed by the Chief Financial Officer of Borrower (or such other designee reasonably acceptable to Lender). Additionally, Borrower shall furnish to Lender, (A) promptly after any request by Lender, copies of any detailed audit reports, management letters or recommendations submitted which is generally made available exclusively to the board Board of directors (or the audit committee Directors of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them; (B) 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 SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Lender pursuant hereto; and (C) promptly, and in any event within five Business Days after receipt thereof by Borrower thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation by such agency regarding financial or other operational results of BorrowerCompany.
Appears in 1 contract
Samples: Stockholders Agreement (Freedom Securiteis Corp /De/)
Financial Statements; Information. Furnish The Borrower will furnish to Lender the Administrative Agent (iwho agrees to promptly furnish to each Lender):
(a) Borrower’s quarterly internally-prepared consolidated and consolidating financial statements, within forty- five sixty (4560) days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower’s , an unaudited balance sheet, income statement and cash flow statement for such fiscal quarter, and an income statement and cash flow statement for such year-endsto-date period, of the Borrower prepared in accordance with IFRS (subject to normal year-end audit adjustments and the absence of footnotes to such financial statements), setting forth in comparative form the figures for the corresponding periods in the previous year, all in reasonable detail, and certified by the Chief Financial Officer (or such other designee reasonably acceptable to Lender) a financial officer of the Borrower to as fairly present presenting, in all material respects the financial condition positions of Borrower; the Borrower or companies being reported on and its or their results of operations and cash flows, subject to changes resulting from year-end adjustments;
(iib) annual audited consolidated and consolidating financial statements within ninety (90) days after the end of each fiscal year of the Borrower, prepared by a Registered Public Accounting Firm acceptable to Lenderbalance sheet, together with an unqualified opinion of such accountants reasonably acceptable to Lender, any management letters issued by such accountants income statement and an attestation report cash flow statement of the Registered Public Accounting Firm as to the Borrower’s internal controls pursuant to Section 404 of Xxxxxxxx-Xxxxx expressing a conclusion to which the Lender does not object, all within one hundred twenty (120) days of Borrower’s Borrower for such fiscal year-end; (iii) such other information respecting the financial condition and operations of Borrower or any Affiliate or Subsidiary thereof as Lender may from time to time reasonably request. All financial statements, opinions, reports and management letters described in clause (i) and (ii) above shall be each case prepared in accordance with GAAP IFRS (with footnotes to such financial statements) together with an audit report thereon (without a “going concern” or like qualification or exception and applicable Securities Laws and without any qualification or exception as to the scope of their audit) by an independent accounting firm of established national reputation; provided that, notwithstanding the foregoing, the Borrower shall provide the information required to be delivered in form and content satisfactory to Lenderthis clause (b) for the fiscal year ending on December 31, and shall include2016, without limitationno later than June 30, an income statement2017;
(c) prompt notice of the occurrence of any Default or Event of Default upon obtaining knowledge thereof, balance sheet, a cash flow statement and a list of contingent liabilities and claims reportable under GAAP guidelines. All financial statements which notice shall be accompanied by a compliance certificatestatement of a Responsible Officer setting forth the details of the relevant Default or Event of Default and any action taken or proposed to be taken with respect thereto or any material Litigation, labor dispute or environmental claim with respect to the Borrower and exceeding $10,000,000 has arisen, a written notice of such event describing the same in reasonable detail and, together with such notice, a description of the action that the Borrower has taken and/or proposes to take with respect thereto;
(d) subject to confidentiality requirements, give to the Administrative Agent:
(i) promptly upon any change in the form of Exhibit 4.1(c) hereto, setting forth Borrower’s compliance with, and actual calculations for, financial covenants required under Section 4.3 hereof, and signed by the Chief Financial Officer of Borrower (or such other designee reasonably acceptable to Lender). Additionally, Borrower shall furnish to Lender, (A) promptly after any request by Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books Authorized Officers of the Borrower or any Subsidiaryother Obligor, notice thereof, and such notice shall include a certified specimen signature of any new officer so appointed and, if requested by the Administrative Agent, reasonably satisfactory evidence of the authority of such new Authorized Officer;
(ii) promptly upon any material dispute, deadlock or similar matter under any Charter Documents of the Borrower or any audit other Obligor, to the extent the same has had or would reasonably be expected to have a Material Adverse Effect, notice thereof;
(iii) promptly upon receipt of any written notice of themimplementation of a proceeding by any Governmental Authority in respect of any matters covered in Section 4.13; and
(Biv) promptly within ten (10) Business Days after the same are availableoccurrence thereof, copies notice of each annual reportany other event or circumstance that has had or would reasonably be expected to have a Material Adverse Effect;
(e) upon the reasonable request of the Administrative Agent, proxy or financial statement or other report or communication sent the Borrower shall promptly provide to the stockholders Administrative Agent and the Lenders information with respect to the status of the BorrowerPlanned Dispositions and make its general manager, chief financial officer, general counsel and copies of all annual, regular, periodic other officers available to discuss such information with the Administrative Agent and special reports and registration statements which the Lenders;
(f) the Borrower may file shall deliver 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 cause to be delivered to the Lender pursuant hereto; and (C) promptlyAdministrative Agent, and in any event within five Business Days after receipt thereof by Borrower thereofpromptly upon sending or receipt, copies of each notice any and all management letters or other similar communication and correspondence relating to management letters, sent or received by the Borrower to or from any auditor of the SEC Borrower; and
(g) simultaneously with the delivery of each set of financial statements referred to in Section 5.01(a) and Section 5.01(b) above, a certificate signed by a Responsible Officer of the Borrower stating whether any Default or comparable agency in Event of Default exists on the date of such certificate and, if any applicable non-U.S. jurisdiction) concerning any investigation Default or possible investigation by such agency regarding financial Event of Default then exists, setting forth the details thereof and the action which the Borrower is taking or other operational results of Borrowerproposes to take with respect thereto.
Appears in 1 contract
Financial Statements; Information. Furnish So long as any Note shall remain unpaid or any Bank shall have any Commitment hereunder, unless the Majority Banks shall otherwise consent in writing, the Borrower will furnish to Lender each Bank:
(ia) Borrower’s quarterly internally-prepared consolidated as soon as practicable and consolidating financial statements, in any event within forty- five (45) 45 days after the end of each of the first three quarterly fiscal periods in each fiscal year of the Borrower’s , an unaudited consolidated balance sheet of the Borrower and its Restricted Subsidiaries, in each case as of the end of such quarterly period and the related unaudited consolidated statements of income, shareholders equity and cash flows of the Borrower and its Restricted Subsidiaries for such period, and (in the case of the first, second and third such quarterly periods) for the portion of the fiscal quarter-endsyear ended with the last day of such quarterly period, setting forth in each case in comparative form the figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified by the Chief Financial Officer principal financial officer of the Borrower;
(or such other designee reasonably acceptable to Lenderb) as soon as practicable and in any event within 90 days after the end of each fiscal year of the Borrower, a consolidated balance sheet of the Borrower to fairly and its Restricted Subsidiaries, in each case as of the end of such year and the related consolidated statements of income, shareholders' equity and cash flows of the Borrower and its Restricted Subsidiaries for such fiscal year, setting forth in each case in comparative form the respective figures for the previous fiscal year, all in reasonable detail and accompanied by a report thereon of independent certified public accountants of recognized national standing, who may be the present regular auditors of the financial condition books of the Borrower; , which report shall not be made in reliance upon the opinion of any other accountant (ii) annual audited consolidated and consolidating other than an opinion regarding the financial statements of Borrowerany Person for any fiscal period ending prior to the time such Person became a Subsidiary), prepared by a Registered Public Accounting Firm acceptable shall be made without qualification (except for qualifications resulting from changes in accounting principles and methods agreed to Lender, together with an unqualified opinion of such accountants reasonably acceptable to Lender, any management letters issued by such accountants accountants), shall comply with generally accepted auditing standards at the time in effect and an attestation report shall state that such financial statements present fairly, in all material respects, the consolidated financial position of the Registered Public Accounting Firm Borrower and its Restricted Subsidiaries as to at the Borrower’s internal controls pursuant to Section 404 dates indicated and the results of Xxxxxxxx-Xxxxx expressing a conclusion to which their operations for the Lender does not object, all within one hundred twenty (120) days of Borrower’s fiscal year-end; (iii) such other information respecting the financial condition periods indicated and operations of Borrower or any Affiliate or Subsidiary thereof as Lender may from time to time reasonably request. All financial statements, opinions, reports and management letters described in clause (i) and (ii) above shall be have been prepared in accordance with GAAP applied on a basis consistent with prior years (except for changes in application in which such accountants concur and applicable Securities Laws which are noted in such financial statements) and shall be that the examination of such accountants has been made in form and content satisfactory to Lenderaccordance with generally accepted auditing standards, and shall include, without limitationaccordingly included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances;
(c) together with each delivery of financial statements pursuant to clause (a) or (b) of this section, an income statementOfficer's Certificate:
(i) stating that the officer executing the same on behalf of the Borrower has reviewed the terms of this Agreement and of the Notes and has made, balance sheetor caused to be made under his supervision, a cash flow statement review in reasonable detail of the transactions and a list conditions of contingent liabilities the Borrower and claims reportable under GAAP guidelines. All its Subsidiaries during the accounting period covered by such financial statements shall be accompanied by a compliance certificate, in the form of Exhibit 4.1(c) hereto, setting forth Borrower’s compliance withstatements, and actual calculations for, financial covenants required under Section 4.3 hereofthat such review has not disclosed the existence during or at the end of such accounting period, and signed by that such officer does not have knowledge of the Chief Financial Officer existence as at the date of such Officer's Certificate, of any condition or event which constitutes a Default or an Event of Default, or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action the Borrower has taken or is taking or proposes to take with respect thereto;
(ii) setting forth, as of the date of such balance sheet or for such other designee reasonably acceptable to Lender). Additionallyperiod, Borrower shall furnish to Lenderas the case may be, (A) promptly after any request by Lenderthe respective amounts (showing the calculations thereof) of Attributable Debt, copies of any detailed audit reportsConsolidated Current Assets, management letters or recommendations submitted Consolidated Current Liabilities, Consolidated Income Tax Expense, Consolidated Interest Expense, Consolidated Funds from Operations, Consolidated Liabilities, Consolidated Net Income (determined both with and without reference to the board of directors clause (or the audit committee of the board of directorsiii) of the Borrower definition of such term), Consolidated Tangible Net Worth, Consolidated Total Debt, Current Debt, Priority Debt, Total Capitalization and (B) the aggregate principal amount of outstanding Debt of all Subsidiaries and outstanding Debt secured by Liens permitted by section 5.13, and
(iii) setting forth, as of the date of such balance sheet or for such period, as the case may be, facts or computations in reasonable detail demonstrating compliance with the restrictions contained in sections 5.07, 5.08, 5.09, 5.10, 5.11, 5.12, 5.13, 5.14, 5.15, 5.16 and 5.17;
(d) together with each delivery of annual financial statements pursuant to clause (b) of this section, a written statement by the independent public accountants referred to in said clause (b) who have reported on such financial statements
(i) stating whether, in the course of their audit examination or otherwise, anything has come to their attention concerning the existence during the fiscal year covered by such
(ii) stating that they have examined the Officer's Certificate delivered in connection with such annual financial statements pursuant to clause (c) of this section and based upon their audit examination nothing has come to their attention which causes them to believe that the accounts information contained in such Officer's Certificate is not correct or books that the matters set forth in such Officer's Certificate in connection with such annual financial statements have not been properly stated in accordance with the terms of the Borrower or any Subsidiary, or any audit of any of them; this Agreement;
(Be) 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 SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Lender pursuant hereto; and upon receipt thereof (C) promptly, and in any event within five Business Days after receipt thereof by Borrower thereofthereafter), copies of each notice all reports submitted to the Borrower by independent public accountants in connection with any annual, interim or other correspondence received from special audit of the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation Borrower made by such agency regarding financial or other operational results accountants, but, excluding, subject to clause (k) of Borrower.this section, the following:
(1) Management letters; (2) Management consulting reports; (3) Reports for a committee of Board of Directors; (4) Negative assurance comfort letters; and
Appears in 1 contract
Financial Statements; Information. Furnish The Guarantor will --------------------------------- furnish to Lender each of the Beneficiaries, so long as it or its nominee shall be obligated to purchase or shall hold any of the Notes:
(a) as soon as practicable and in any event within 45 days after the end of each of the first three quarterly fiscal periods in each fiscal year of the Guarantor, the unaudited consolidated balance sheet of the Guarantor and its Subsidiaries, and the unaudited consolidating balance sheet of the Guarantor, the Issuer and each Issuer Subsidiary, as of the end of such quarterly period and the related unaudited consolidated statements of income, retained earnings and cash flows of the Guarantor and its Subsidiaries, and the related unaudited consolidating statement of income of the Guarantor, the Issuer and each Issuer Subsidiary for such quarterly period and (in the case of the second and third such quarterly periods) for the portion of the fiscal year ended with the last day of such quarterly period, setting forth in each case in comparative form the respective figures for the corresponding periods of the previous fiscal year, all in reasonable detail and certified as complete and correct in all material respects in conformity with GAAP (except in respect of consolidating statements and footnotes), subject to changes resulting from year-end audit adjustments, by the principal financial officer of the Guarantor;
(b) as soon as practicable and in any event within 90 days after the end of each fiscal year of the Guarantor, the consolidated balance sheet of the Guarantor and its Subsidiaries, and the unaudited consolidating balance sheet of the Guarantor, the Issuer and each Issuer Subsidiary, as of the end of such fiscal year and the related consolidated statements of income, retained earnings and cash flows of the Guarantor and its Subsidiaries, and the related unaudited consolidating statement of income of the Guarantor, the Issuer and each Issuer Subsidiary, for such fiscal year, setting forth in each case in comparative form the respective figures for the previous fiscal year, all in reasonable detail and (i) Borrower’s quarterly internally-prepared in the case of such consolidated and consolidating financial statements, within forty- five (45) days accompanied by a report thereon of each Coopers & Xxxxxxx L.L.P. or other independent certified public accountants of Borrower’s fiscal quarter-ends, and certified recognized national standing selected by the Chief Financial Officer (or such other designee reasonably acceptable to Lender) Guarantor, which report shall, unless a waiver of the Borrower to fairly present the financial condition provisions of Borrower; (iithis Section 4.03(b) annual audited consolidated and consolidating financial statements of Borrower, prepared by a Registered Public Accounting Firm acceptable to Lender, together with an unqualified opinion of such accountants reasonably acceptable to Lender, any management letters issued by such accountants and an attestation report of the Registered Public Accounting Firm as to the Borrower’s internal controls has been obtained pursuant to Section 404 6.2, be made without qualification as to or by reason of Xxxxxxxx-Xxxxx expressing a conclusion (x) changes in accounting principles and methods (other than changes therein in which such accountants express their concurrence), (y) the unavailability of sufficient competent evidential matter on which to which base an audit or the Lender does not object, all within one hundred twenty inadequacy of accounting records or (120z) days restrictions on the scope of Borrower’s fiscal year-end; (iii) the audit conducted and shall comply with generally accepted auditing standards at the time in effect and shall state that such other information respecting financial statements present fairly the financial condition position of the companies being reported upon as at the dates indicated and the results of their operations of Borrower or any Affiliate or Subsidiary thereof as Lender may from time to time reasonably request. All financial statements, opinions, reports and management letters described in clause (i) cash flows for the periods indicated and (ii) above shall be have been prepared in accordance with GAAP and applicable Securities Laws and shall be consistently applied (except for changes in form and content satisfactory to Lenderapplication in which such accountants concur) on a basis consistent with prior years, and shall includethat the examination of such accountants has been made in accordance with generally accepted auditing standards, without limitationand accordingly included such tests of pertinent accounting records and such other auditing procedures as were considered necessary in the circumstances, and (ii) in the case of such consolidating balance sheets and statements of income of the Guarantor, the Issuer and each Issuer Subsidiary, certified as complete and correct in all material respects in conformity with GAAP by the principal financial officer of the Guarantor;
(c) concurrently with each delivery of financial statements pursuant to clause (a) or (b) of this Section 4.03, an income statement, balance sheet, a cash flow statement and a list of contingent liabilities and claims reportable under GAAP guidelines. All financial statements shall be accompanied by a compliance certificate, Officer's Certificate substantially in the form of Exhibit 4.1(c) heretoA stating that such officer has reviewed the terms of this Guaranty, setting forth Borrower’s compliance withthe Agreements and the Notes and has made, or caused to be made under such officer's supervision, a review in reasonable detail of the transactions and conditions of the Guarantor and the Subsidiaries during the accounting period covered by such financial statements, and actual calculations forthat such review has not disclosed the existence during, financial covenants required under Section 4.3 hereofor at the end of such accounting period, and signed by that such officer does not have knowledge of the Chief Financial Officer existence as at the date of Borrower such Officer's Certificate, of any condition or event which constitutes a Default or an Event of Default, or, if any such condition or event existed or exists, specifying the nature and period of existence thereof and what action the Guarantor has taken or is taking or proposes to take with respect thereto;
(or d) together with each delivery of annual financial statements pursuant to clause (b) of this Section 4.03, a written statement of the accountants giving the report thereon:
(i) stating that they have read the Officer's Certificate delivered in connection with the annual financial statements pursuant to clause (c) of this Section 4.03 for such other designee reasonably acceptable fiscal year and the Officer's Certificate delivered in connection with the annual financial statements pursuant to Lenderclause (c) of Section 4 of the Agreements for such fiscal year and based upon their annual audit examination of the financial statements delivered pursuant to clause (b) of this Section nothing has come to their attention which causes them to believe that the matters set forth in such written statement pursuant to subclauses (ii). Additionally, Borrower shall furnish to Lender, (Aiii) and (iv) of such clause (c) of Section 4 of the Agreements in connection with such annual financial statements have not been properly stated in accordance with the terms of this Guaranty or the Agreements, and
(ii) stating that in making the examination necessary for their report on such financial statements they obtained no knowledge of the existence of any condition or event which constitutes a Default or an Event of Default or, if such accountants shall have obtained knowledge of any such Default or Event of Default, specifying all such Defaults and Events of Defaults and the nature and status thereof;
(e) promptly after upon their becoming available (and in any request by Lenderevent within ten Business Days thereafter), copies of any detailed audit (i) all financial statements, reports, notices, proxy statements and other information sent or made available generally by the Guarantor to any class of its security holders, (ii) all regular and periodic reports (including reports on Form 8-K) and any registration statements (other than on Form S-8 or a similar form) and prospectuses filed by the Guarantor or any of its Subsidiaries with any securities exchange or with the Commission and (iii) all press releases and other statements made available generally by the Guarantor to the public concerning material developments in the business of the Guarantor or its Subsidiaries;
(f) promptly upon receipt thereof (and in any event within five Business Days thereafter), copies of all management letters or recommendations other reports submitted to the board of directors (or the audit committee of the board of directors) of the Borrower Guarantor by independent public accountants in connection with any annual, interim or special audit of the accounts or books of the Borrower Guarantor or its Subsidiaries made by such accountants;
(g) promptly upon (and in any Subsidiaryevent within three Business Days thereafter) any Senior Officer of the Guarantor obtaining knowledge of any condition or event which constitutes a Default or an Event of Default, or any audit becoming aware that the holder of any Note has given any notice or taken any other action with respect to a claimed Default or Event of them; Default an Officer's Certificate specifying the nature and period of existence thereof and what action the Guarantor or the Issuer has taken or is taking or proposes to take with respect thereto;
(B) 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 SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Lender pursuant hereto; and (Ch) promptly, and in any event within five Business Days after 30 days of receipt thereof by Borrower thereof, copies of each any notice to the Guarantor from any Federal or state Governmental Body relating to any Order, ruling, statute or other correspondence received from the SEC law or regulation that could reasonably be expected to have a Material Adverse Effect; and
(or comparable agency i) promptly upon request therefor (and in any applicable non-U.S. jurisdiction) concerning event within five Business Days thereafter), such other information as to the business, operations, properties, financial condition or prospects of the Guarantor, the Issuer or any investigation or possible investigation by such agency regarding financial or other operational results of BorrowerSubsidiary as may from time to time be reasonably requested.
Appears in 1 contract
Samples: General Continuing Guaranty (National Golf Properties Inc)
Financial Statements; Information. Furnish The Company will furnish to Lender the Administrative Agent, who will promptly furnish to each Lender:
(a) within 60 days after the end of each quarterly fiscal period in each fiscal year of the Company (other than the last quarterly fiscal period of each such fiscal year):
(i) Borrower’s an unaudited consolidated balance sheet of the Company and the Subsidiaries as at the end of such quarter, and
(ii) unaudited consolidated statements of income, changes in shareholders’ equity and cash flows of the Company and the Subsidiaries, for such quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such quarter, setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to quarterly internally-prepared consolidated and consolidating financial statements, within forty- five (45) days of each of Borrower’s fiscal quarter-endsstatements generally, and certified by the Chief Financial Officer (or such other designee reasonably acceptable to Lender) Treasurer as fairly presenting, in all material respects the financial position of the Borrower companies being reported on and their results of operations and cash flows, subject to fairly present changes resulting from year-end adjustments,
(b) within 90 days after the financial condition end of Borrower; each fiscal year of the Company:
(i) an unaudited consolidated balance sheet of the Company and the Subsidiaries as at the end of such year, and
(ii) annual audited unaudited consolidated and consolidating financial statements of Borrowerincome, prepared by a Registered Public Accounting Firm acceptable to Lender, together with an unqualified opinion of such accountants reasonably acceptable to Lender, any management letters issued by such accountants changes in shareholders’ equity and an attestation report cash flows of the Registered Public Accounting Firm as to Company and the Borrower’s internal controls pursuant to Section 404 of Xxxxxxxx-Xxxxx expressing a conclusion to which Subsidiaries, for such year, setting forth in each case in comparative form the Lender does not objectfigures for the previous fiscal year, all within one hundred twenty (120) days of Borrower’s fiscal year-end; (iii) such other information respecting the financial condition and operations of Borrower or any Affiliate or Subsidiary thereof as Lender may from time to time reasonably request. All financial statementsin reasonable detail, opinions, reports and management letters described in clause (i) and (ii) above shall be prepared in accordance with GAAP and applicable Securities Laws and shall be in form and content satisfactory to Lenderquarterly financial statements generally, and shall includecertified by the Treasurer as fairly presenting, without limitationin all material respects the financial position of the companies being reported on and their results of operations and cash flows.
(c) prompt notice of the following:
(i) the occurrence of any Default or Event of Default with respect to the Company, an income statementKMEP or any of their respective Subsidiaries or, balance sheetto its knowledge, ETP or any of its Subsidiaries or any Change in Control Event and
(ii) any development that results in, or could reasonably be expected to result in, a cash flow statement and a list of contingent liabilities and claims reportable Material Adverse Effect; (each notice delivered under GAAP guidelines. All financial statements shall this Section 5.01(c) to be accompanied by a compliance certificate, in the form statement of Exhibit 4.1(c) hereto, a Responsible Officer setting forth Borrower’s compliance with, the details of the event or development requiring such notice and actual calculations for, financial covenants any action taken or proposed to be taken with respect thereto);
(d) if and when any member of the ERISA Group (i) gives or is required under Section 4.3 hereof, and signed by to give notice to the Chief Financial Officer of Borrower (or such other designee reasonably acceptable to Lender). Additionally, Borrower shall furnish to Lender, (A) promptly after any request by Lender, copies PBGC of any detailed audit reports“reportable event” (as defined in Section 4043 of ERISA) (other than such event as to which the 30-day notice requirement is waived) with respect to any Plan which might constitute grounds for a termination of such Plan under Title IV of ERISA, management letters or recommendations submitted knows that the plan administrator of any Plan has given or is required to the board give notice of directors (or the audit committee any such reportable event, a copy of the board notice of directors) of the Borrower by independent accountants in connection with the accounts such reportable event given or books of the Borrower or any Subsidiary, or any audit of any of them; (B) 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 SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered given to the Lender PBGC; (ii) receives notice of complete or partial withdrawal liability under Title IV of ERISA or notice that any Multiemployer Plan is in reorganization, is insolvent or has been terminated, a copy of such notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent to terminate, impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of such notice; (iv) applies for a waiver of the minimum funding standard under Section 412 of the Code, a copy of such application; (v) gives notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and other information filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant heretoto Section 4063 of ERISA, a copy of such notice; and or (Cvii) promptly, and fails to make any payment or contribution to any Plan or Multiemployer Plan or in respect of any event within five Business Days after receipt thereof by Borrower thereof, copies Benefit Arrangement or makes any amendment to any Plan or Benefit Arrangement which has resulted or could result in the imposition of each notice a Lien or the posting of a bond or other correspondence received security, a certificate of the chief financial officer or the chief accounting officer of the Company setting forth details as to such occurrence and action, if any, which the Company or applicable member of the ERISA Group is required or proposes to take; and
(e) from time to time such other information regarding the SEC (business, affairs or comparable agency in financial condition of the Company or any applicable non-U.S. jurisdiction) concerning any investigation Subsidiary as the Required Lenders or possible investigation by such agency regarding financial or other operational results of Borrowerthe Administrative Agent may reasonably request.
Appears in 1 contract
